Holding

Exception 2 to Section 375 IPC is read down to exclude girl children below 18 years, making sexual intercourse with such a wife punishable as rape, thereby harmonising the IPC with the POCSO Act and upholding Articles 14, 15(3) and 21 of the Constitution.

Summary

The Supreme Court examined whether Exception 2 to Section 375 of the Indian Penal Code, which exempts a husband from rape liability when his wife is aged 15‑18, violates the Constitution and conflicts with the Protection of Children from Sexual Offences (POCSO) Act. The Court held that the exemption creates an arbitrary and discriminatory distinction between married and unmarried girl children, contravenes Articles 14, 15(3) and 21, and is inconsistent with the pro‑child statutes such as POCSO, the Juvenile Justice Act and the Prohibition of Child Marriage Act. Applying a purposive and harmonious construction, the Court read down Exception 2 so that it applies only when the wife is not a child (i.e., not below 18 years), thereby making sexual intercourse with a girl child under 18 a rape offence. The judgment was given prospective effect and the petition was disposed.

Issues considered

Whether Exception 2 to Section 375 IPC, as it applies to girl children aged 15‑18, is unconstitutional, arbitrary and discriminatory.
Whether there is a conflict between Exception 2 of Section 375 IPC and Section 5(n) of the POCSO Act and which provision should prevail.
Whether the exception can be read down to align with the Constitution and pro‑child legislation.

Legislation cited

Code of Criminal Procedures. 198(6)
Criminal Law (Amendment) Ordinance, 2013
Domestic Violence Act, 2005s. 3
Hindu Marriage Act, 1955s. 13(2)(iv)
Indian Penal Code, 1860s. 375, s. 41, s. 5
Juvenile Justice (Care and Protection of Children) Act, 2015s. 2(12), s. 2(14)
Muslim Marriages and Divorce Act, 1939s. 13(2)(iv)
Prohibition of Child Marriage Act, 2006s. 10, s. 11, s. 13, s. 14, s. 2, s. 3, s. 9
Protection of Children from Sexual Offences Act, 2012s. 3, s. 42, s. 42A, s. 5, s. 6

Subjects

marital rapechild marriageException 2Section 375 IPCPOCSO Actconstitutional validityArticle 14Article 15(3)Article 21pro‑child legislationharmonious construction

Judgment

[2017] 13 S.C.R. 821

INDEPENDENT THOUGHT A
V.

UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 382 of20!3)
OCTOBER II, 2017 B

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.)
Penal Code, 1860 - Exception 2 to s.375:
Sexual intercourse between a man and his wife being a girl
between 15 and 18 years of age - Rape or not - Held: Sexual C
intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not - Exception carved out in the Penal
Code creates an unnecessary and artificial distinction between a
married girl child and an unmarried girl child and has no rational
nexus with any unclear objective sought lo be achieved - The D
artificial distinction is arbitrary, discriminatory and not in the
interest of girl child and contrary lo the Arts.15(3), 21 of the
Constitution and commitments made in international conventions -
Human Rights - Children -Married girl child.
Whether there is any incongmi(v between the Exception 2 to
s.375 of the /PC ands. 5(n) of the POCSO Act and which provision E
overrides the other - Held: There is an apparent conflict or
incongmi(v between the provisions of Penal Code and the POCSO
Act - Whatever be the explanation, given the context and purpose
of their enactment, primacy must be given to pro-child statutes over
the /PC as provided for in ss. 5, 41 of the !PC-Further, as provided F
in s.42A of POCSO. in case of an inconsistency between POCSO
and any other law, POCSO will prevail - Statutes concerning the
rights of the children are special laws concerning a special subject
of legislation and therefore the provisions of such subject-specific
legislation must prevail and take precedence over the provisions of
a general law such as the /PC - There can be no other opinion G
regarding the pro-child slant of JJ Act as well as the POCSO Act -
Protection of Children from Sexual Offences Act, 2012(POCSO) -
ss.5(n),42 - Juvenile Justice (Care and Protection of Children) Act,
2015.
H
821
822 SUPREME COURT REPORTS [2017] 13 S.C.R.

A Interpretation of Statutes: Harmonious and Purposive
Construction - Held: Exception 2 to s.375 of Penal Code to be
read in a purposive manner to make it in consonance with the
POCSO Act, the spirit of other pro-child legislations and the human
rights of a married girl child - Therefore, to harmonize system of
laws relating to children, Exception 2 to s.375 of the !PC now
B
required to be meaning/idly read as: "Sexual intercourse or sexual
acts by a man with his own wife. the wife not being under eighteen
years ~f age, is not rape".
Crime Against Women: Rape - Held: A rapist remains a rapist
and marriage with the victim does not convert him into a non-rapist
c - Similarly, a rape is a rape whether it is described as such or is
described as penetrative sexual assault or aggravated penetrative
sexual assault - A rape that actually occurs cannot be legislatively
be simply whisked away or legislatively denied as non-existent.
Constitution of India :
D
Art. 15(3) - Spirit of - Held: Art. 15(3) cannot and ought not
to be interpreted restrictively but must be given its fi11/ play - From
this perspective, it is clear that legislation intended for affirmative
action in respect of a girl child must not only be liberally construed
and interpreted but must override any other legislation that seeks
E to restrict the benefit made available to a girl child.
Art.21 - "right to life" - Held (Per Deepak Gupta, J.): The
right to life envisaged in Art.21 is not merely a right to live an animal
existence - This Court has repeatedly held that right to life means a
right to live with human dignity - In case of minor girl, it would
F mean her right to grow and develop physically. mentally and
economically as an independent self sufficient female adult.
Art.14 - Exception 2 to s.375 on the touchstone of Art. 14 -
Held: (Per Deepak Gupta, J.) When the State on one hand. has. by
legislation laid down that abetting child marriage is a criminal
G offence, it cannot, on the other hand defend this classification of
girls below 18 years on the ground of sanctity of marriage because
such classification has no nexus with the object sought to be
achieved - Further, the husband is not given the immunity in any
other penal provision except in Exception 2 to s.375 - It does not
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 823

stand to reason that only for the offence of rape the husband should A
be granted such an immunity especially where the "victim wife" is
aged below 18 years i.e. below the legal age of marriage and is
also not legally capable of giving consent to have sexual intercourse
- Exception 2 to s.375 is. ther4ore, discriminatory and violative of
Art.14 of the Constitution.
B
Constitutional validity ~flaw - Held (Per Deepak Gupta, J.):
There are se!f imposed limitations laid down by the Court while
deciding the issue whether a law is constitutional or not - If the
legislature enacts a law which is violative of the fimdamental rights
of the citizens, is arbitrary and discriminatory, then the Court would
be failing in its duty if it does not either strike down the law or read C
down the law in such a manner that it falls within the four corners
of the Constitution.
Prohibition of Child Marriage Act, 2006 (PCMA) - Scope
and amplitude of - Held (Per Deepak Gupta, J.): PCMA is a secular
Act- It being a special Act dealing with children, the provision of D
this Act will prevail over the provisions of both the Hindu Marriage
Act, 1955, Muslim Marriages and Divorce Act, 1939 in so far as
children are concerned.
Interpreting the provisions, the Court
E
HELD: Per Madan B. Lokur, J.:
Whether sexual intercourse between a man and his wife being a
girl between 15 and 18 years of age is rape?
1. Exception 2 to Section 375 of the Indian Penal Code,
1860 (the IPC) answers this in the negative, but sexual F
intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not. The exception carved out in the
IPC creates an unnecessary and artificial distinction between a
married girl child and an unmarried girl child and has no rational
nexus with any unclear objective sought to be achieved. The
G
artificial distinction is arbitrary and discriminatory and is definitely
\not in the best interest of the girl child. The artificial distinction
is contrary to the philosophy and ethos of Article 15(3) of the
.Constitution
i'. < . .,., \Pl!,_;.,.,
as well as contrary to Article 21 of the Constitution
land ,f?T.'H,i,~p:tf,~ts made in international conventions. It is also
H
824 SUPREME COURT REPORTS [2017] 13 S.C.R.

A contrary to the philosophy behind some statutes, the bodily
integrity of the girl child and her reproductive choice. [Para 1)
[834-F-H; 835-A)
2. Section 375 of the IPC provides for three circumstances
relating to 'rape'. Firstly sexual intercourse with a girl below 18
B years of age is rape (statutory rape). Secondly and by way of an
exception, if a woman is between 15 and 18 years of age then
sexual intercourse with her is not rape if the person having sexual
intercourse with her is her husband. Her willingness or consent
is irrelevant under this circumstance. Thirdly sexual intercourse
with a woman above 18 years of age is rape if it is under any of
c the seven descriptions given in Section 375 of the IPC (non-
consensual sexual intercourse). [Para 31] [847-E-J<')
3. The result of the above three situations is that the
husband of a girl child between 15 and 18 years of age has blanket
liberty and freedom to have non-consensual sexual intercourse
D with his wife and he would not be punishable for rape under the
IPC since such non-consensual sexual intercourse is not rape
for the purposes of Section 375 of the IPC. On the other hand,
Section 3 of the Protection of Children from Sexual Offences Act,
2012 defines "penetrative sexual assault". Clause (n) of Section
E 5 provides that if a person commits penetrative sexual assault
with a child, then that person actually commits aggravated
penetrath1e sexual assault if that person is related to the child,
inter alia, through marriage. Therefore, if the husband of a girl
child commits penetrative sexual assault on his wife, he actually
commits aggravated penetrative sexual assault as defined in
F Section 5(n) of the POCSO Act. [Paras 32 and 45) [847-G-H;
851-F-H]
4. The duality therefore is that having sexual intercourse
with a girl child between 15 and 18 years of age, the husband of
the girl child is said to have not committed rape as defined in
G Section 375 of the IPC but is said to have committed aggravated
penetrative sexual assault in terms of Section 5(n) of the POCSO
Act. [Para 46) [852-A-B]
5. At this stage it is necessary to refer to Section 42-A
inserted in the POCSO Act by an amendment made on 3rd
H February, 2013. The consequence of this amendment is that the
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 825

provisions of the POCSO Act will override the provisions of any A
other law (including the IPC) to the extent of any inconsistency.
[Para 48) [853-B-DJ
Whether there is any incongruity between Exception 2 to Section
375 of the IPC and Section 5(n) of the POCSO Act and which
provision overrides the other? B
6. There is an apparent conflict or incongruity between the
provisions of the IPC and the POCSO Act. The rape of a married
girl child (a girl child between 15 and 18 years of age) is not rape
under the IPC and therefore not an offence in view of Exception
2 to Section 375 thereof but it is an offence of aggravated c
penetrative sexual assault under Section 5(n) of the POCSO Act
and punishable under Section 6 of that Act. This conflict or
incongruity needs to be resolved in the best interest of the girl
child and the provisions of various complementary statutes need
to be harmonized and read purposively to present an articulate
whole. [Para 74) 1864-A-CJ D

7. Whatever be the explanation, given the context and
purpose of their enactment, primacy must be given to pro-child
statutes over the IPC as provided for in Sections 5 and 41 of the
IPC. There are several reasons for this including the absence of
any rationale in creating an artificial distinction, in relation to E
sexual offences, between a married girl child and an unmarried
girl child. Statutes concerning the rights of children are special
laws concerning a special subject of legislation and therefore the
provisions of such subject-specific legislations must prevail and
take precedence over the provisions of a general law such as the p
IPC. It must also be remembered that the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2015 as
well as the provisions of the POCSO Act are traceable to Article
15(3) of the Constitution which enables Parliament to make special
provisions for the benefit of children. The interpretation of Article
15(3) of the Constitution in a manner that is affirmative, in favour G
of children and for children and adverted to the discussion in the
Constituent Assembly in this regard. There can therefore be no
other opinion regarding the pro-child slant of the JJ Act as well
as the POCSO Act. [Para 93) 1872-G-H; 873-A-B)
826 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 8, The intention of the JJ Act is to benefit a child rather
than place her in difficult circumstances. A contrary view would
not only destroy the purpose and spirit of the JJ Act but would
also take away the importance of Article 15(3) of the Constitution.
Surely, such an interpretation and understanding cannot be given
to the provisions of the JJ Act. [Para 95] (875-B-C]
B
9. In the present context, section 42 -A of POCSO Act is
very significant and holds much greater importance. Section 42-
A of the POC$0 Act provides that the provisions of the POCSO
Act are in addition to and not in derogation of the provisions of
any other law in force which includes the IPC. Moreover, the
c section provides that in the event of any inconsistency between
the provisions of the POCSO Act and any other law, the provisions
of the POCSO Act shall have overriding effect. It follows from
this that even though the IPC decriminalizes the marital rape of
a girl child, the husband of the girl child would nevertheless be
D liable for punishment under the provisions of the POCSO Act for
aggravated penetrative sexual assault. [Para 97)(875-G-H; 876-A]
10. The ~ntire issue of the interpretation of the JJ Act, the
POCSO Act, the PCMA and Exception 2 to Section 375 of the
IPC Cl\n be looked at from yet another perspective, the
E perspective of purposive and harmonious construction of statutes
relating to the same subject matter. [Para 99] [876-F-G]
11. Viewed from any perspective, there seems to be no
reason to arbitrarily discriminate against a girl child who is
married between 15 and 18 years of age. On the contrary, there
F is every reason to give a harmonious and purposive construction
to the pro-child statutes to preserve and protect the human rights
of the married girl child. [Para 102] [878-C-D].
12. On a complete assessment of the law and the
documentary material, it appears that there are really five options
G before Court: (i) To let the incongruity remain as it is - this does
not seem a viable option to us, given that the lives of thousands
of young girls are at stake; (ii) To strike down as unconstitutional
Exception 2 to Section 375 of the IPC - in the present case this
is also not a viable option since this relief was given up and no
such issue was raised; (iii) To reduce the age of consent from 18
H years to 15 years - this too is not a viable option and would
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 827

ultimately be for Parliament to decide; (iv) To bring the POCSO A
Act in consonance with Exception 2 to Section 375 of the IPC -
this is also not a viable option since it would require not only a
retrograde amendment to the POCSO Act but also to several
other pro-child statutes; (v) To read Exception 2 to Section 375
of the IPC in a purposive manner to make it in consonance with B
the POCSO Act, the spirit of other pro-child legislations and the
human rights of a married girl child. Being purposive and
harmonious constructionists, this is the only pragmatic option
available. Therefore, there is no other option but to harmonize
the system of laws relating to children and require Exception 2
to Section 375 of the IPC to now be meaningfully read as: "Sexual C
intercourse or sexual acts by a man with his own wife, the wife
not being under eighteen years of age, is not rape." [Para 1051
[878-G-H; 879-A-D)
Life Insurance Corporation of India v. D.J. Bahadur
(1981) 1 SCC 315 : [19811 1SCR1083; Collector of D
Customs v. Digvijaya Singhji Spinning & Weaving Mills
AIR 1961 SC 1549 : [19621 SCR 896; Abhiram Singh
v. CD. Commachen (2017) 2 SCC 629 : [20171 1 SCR
158 - relied on.
Sri Mahadeb Jiew v. Dr. B.B. Sen AIR 1951 Cal 563; E
Government of A.P. v. P.B. Vijayakumar (1995) 4 SCC
520: [199511 Suppl. SCR 462; YusufAbdul Aziz v. State
of Bombay [19541 SCR 930; Cyril Britto v. Union of
India AIR 2003 Ker 259; State of Maharashtra v.
Madhukar Narayan Mardikar (1991) 1 SCC 57;
Suchita Srivastava v. Chandigarh Administration (2009) F
9 SCC 1; Se/vi v. State of Karnataka (2010) 7 SCC 263
: [2010] 5 SCR 381; Ritesh Sinha v. State of Uttar
Pradesh (2013) 2 SCC 357 : [2012) 11 SCR 683;
Devika Biswas v. Union of India (2016) 10 SCC 726;
State of Karnataka v Krishnappa (2000) 4 SCC 75 : G
[2000] 2 SCR 761; Bodhisattwa Gautam v. Subhra
Chakraborty (1996) 1 SCC 490 : [19951 6 Suppl.
SCR 731; State of Punjab v. Gurmit Singh (1996) 2 SCC
384 : [1996] 1 SCR 532; State of Haryana v. Janak
Singh (2013) 9 sec 431 : [2013] 5 scR 1144;
H
828 SUPREME COURT REPORTS (2017] 13 S.C.R.

A Eisenst'adt v. Baird 405 US 438; State of Madhya
Pradesh v. Bhopal Sugar Industries Ltd. [1964] 6 SCR
846; Ra,ttan Arya v. State of Tamil Nadu (1986) 3 SCC
385 : [1986] 2 SCR 596; Anuj Garg v. Hotel Association
of India (2008) 3 SCC 1 : [2007] 12 SCR 991;
Sutyawl!lti Sharma v. Union of India (2008) 5 SCC 287
B : [2008) 6 SCR 566; Seaford Court Estates Ltd. v. Asher
) 1949 [ 2 K.B. 481; Jugal Kishore v. State of
Maharashtra (1989) Supp (1) SCC 589 : [1988]
3 Suppl. SCR 270 - referred to.
Law Commission of India - 8/h and I 72nd Reports -
c referred to.
National Charter for Children, 2003: National Policy
for Children; National Plan of Action for Children,
2016: Safe Children- Happy Childhood; Study on Child
Abuse: India 2007;Convention on Elimination of All
D Forms ofDiscrimination Against Women and Convention
on the Rights of the Child - referred to.
Per Deepak Gupta, J.:(Concurring)
Whether Exfeption 2 to Section 375 of the Indian Penal Code, in
E so far as it r\'.lates to girls aged 15 to 18 years, is unconstitutional
and liable to be struck down?
1. The principle is that normally the Courts should raise a
presumption in favour of the impugned law; however, if the law
under challenge violates the fundamental rights of the citizens,
the law is arbitrary, or is discriminatory, the Courts can either
F
hold the law to be totally unconstitutional and strike down the
law or the Court may read down the law in such a manner that the
law when read down does not violate the Constitution. While the
Courts must show restraint while dealing with such issues, the
Court cannot shut its eyes to the violations of the fundamental
G rights of the citizens. Therefore, if the legislature enacts a law
which is violative of the fundamental rights of the citizens, is
arbitrary and discriminatory, then the Court would be failing in
its duty if it does not either strike down the law or read down the
law in such a manner that it falls within the four corners of the
Constitution. [Para 59] [906-G-H; 907-A-B]
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 829

2. Law cannot be hidebound and static. It has to evolve A
and change with the needs of the society. Recognising these
factors, the Parliament increased the minimum age for marriage.
The Parliament also increased the minimum age of consent but
the inaction in raising the age in Exception 2 is by itself an
arbitrary non-exercise of power. When the age was being raised
B
in all other laws, the age under Exception 2 should also have
been raised to bring it in line with the evolving laws especially
the laws to protect women and the girl child aged below 18 years.
Therefore, there is no hesitation in holding that the Exception
2, in so far as it relates to the girl child below eighteen years, is
unreasonable, unjust, unfair and violative of the rights of the girl c
child. To that extent the same is arbitrary and liable to be set
aside. [Para 74] [913-G-H; 914-A]
3. When the State on the one hand, has, by legislation, laid
down that abetting child marriage is a criminal offence, it cannot,
on the other hand defend this classification of girls below 18 years D
on the ground of sanctity of marriage because such classification
has no nexus with the object sought to be achieved. Therefore,
also Exception 2 in so far as it relates to girls below 18 years is
discriminatory and violative of Article 14 of the Constitution. [Para
76] [915-E-F]
E
4. One more ground for holding that Exception 2 to Section
375 IPC is discriminatory is that this is the only provision in various
penal laws which gives immunity to the husband. The husband is
not immune from prosecution as far as other offences are
concerned. Therefore, if the husband beats a girl child and has
forcible sexual intercourse with her, he may be charged for F
offences under Sections 323, 324, 325 IPC etc. but he cannot be
charged with rape. This leads to an anomalous and astounding
situation where the husband can be charged with lesser offences,
but not with the more serious offence of rape. As far as sexual
crimes against women are concerned, these are covered by G
Sections 354, 354A, 354B, 354C, 354D of the IPC. These relate
to assault or use of criminal force against a woman with intent to
outrage her modesty; sexual harassment and punishment for
sexual harassment; assault or use of criminal force to woman
with intent to disrobe; voyeurism; and stalking respectively.
H
830 SUPREME COURT REPORTS [2017] 13 S.C.R.

A There is no exception clause giving immunity to the husband for
such offences. The Domestic Violence Act will also apply in such
cases and the husband does not get immunity. There are many
other offences where the husband is either specifically liable or
may be one of the accused. The husband is not given the immunity
in any other penal provision except in Exception 2 to Section
B
375 IPC. It !loes not stand to reason that only for the offence of
rape lhe husJl>and should be granted such an immunity especially
where the "victim wife" is aged below 18 years i.e. below the
legal age of 111arriage and is also not legally capable of giving
consent to h•ve sexual intercourse. Exception 2 to Section 375
c IPC is, therefore, discriminatory and violative of Article 14 of
the Constitu~ion of India, on this count also. [Para 77) [9I5-F-H;
916-A-D)
5. Section 42 of POCSO, makes it clear that where an
offence is punishable, both under POCSO and also under IPC,
D then the offender, if found guilty of such offence, is liable to be
punished under that Act, which provides for more severe
punishment. This is against the traditional concept of criminal
jurisprudenQe that if two punishments are provided, then the
benefit of th¢ lower punishment should be given to the offender.
The Iegislattjre knowingly introduced Section 42 of POCSO to
E protect the h)terests of the child. As the objects and reasons of
the POCSO &how, this Act was enacted as a special provision for
protection of ~hildren, with a view to ensure that children of tender
age are not 11bused during their childhood and youth. These
children were to be protected from exploitation and given facilities
F
to develop in a healthy manner. When a girl is married at the age
of 15 years, it is not only her human right of choice, which is
violated. She is also deprived of having an education; she is
deprived of leading a youthful life. Early marriage and
consummation of child marriage affects the health of the girl child.
All these ill effects of early marriage have been recognised by
G the Government of India in its own documents. [Para 79) [916-
G-H; 917-A-B]
6. Section 42A of POCSO has two parts. The first part of
the Section provides that the Act is in addition to and not in
derogation of any other law. Therefore, the provisions of POCSO
H are in addithm to and not above any other law. However, the
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 831

second part of Section 42A provides that in case of any A
inconsistency between the provisions of POCSO and any other
law, then it is the provisions of POCSO, which will have an
overriding effect to the extent of inconsistency. POCSO defines
a child to be a person below the age of 18 years. Penetrative
sexual assault and aggravated penetrative sexual assault have B
been defined in Section 3 and Section 5 of POCSO. Provisions of
Section 3 and 5 are by and large similar to Section 375 and Section
376 of IPC. Section 3 of the POCSO is identical to the opening
portion of Section 375 of IPC whereas Section 5 of POCSO is
similar to Section 376(2) of the IPC. Exception 2 to Section 375
of IPC, which makes sexual intercourse or acts of consensual C
sex of a man with his own "wife" not being under 15 years of age,
not an offence, is not found in any provision of POCSO. Therefore,
this is a major inconsistency between POCSO and IPC. As
provided in Section 42A, in case of such an inconsistency, POCSO
will prevail. Moreover, POCSO is a special Act, dealing with the D
children whereas IPC is the general criminal law. Therefore,
POCSO will prevail over IPC and Exception 2 in so far as it relates
to children, is inconsistent with POCSO. [Para 801 1917-C-FI
7. Exception 2 to Section 375 IPC in so far as it relates to a
girl child below 18 years is liable to be struck down on the following
grounds: (i) it is arbitrary, capricious, whimsical and violative of E
the rights of the girl child and not fair, just and reasonable and,
therefore, violative of Article 14, 15 and 21 of the Constitution of
India; (ii) it is discriminatory and violative of Article 14 of the
Constitution of India and; (iii) it is inconsistent with the provisions
of POCSO, which must prevail. Therefore, Exception 2 to s.375 F
IPC is read down as follows: "Sexual intercourse or sexual acts
by a man with his own wife, the wife not being 18 years, is not
rape". However, this judgment will have prospective effect. (Para
881 [919-E-H; 920-A-B]
Sub-Divisional Magistrate v. Ram Kali [1968] 1 SCR
205; Pathumma & Ors. v. State of Kera/a & Ors. (1978) G
2 SCC 1 : [1978] 2 SCR 537; Government of A.P. v.
P. Laxmi Devi (2008) 4 SCC 720 : [20081 3 SCR 330;
Subramanian Swamy v. Director. CBI (2014) 8 SCC
682: (2014] 6 SCR 873; State of Punjab v. Khan Chand
(1974) 1 SCC 549 : [1974] 2 SCR 768 - relied on. H
832 SUPREME COURT REPORTS [2017] 13 S.C.R.

A Association for Social Justice & Research v. Union of
India & Ors. (2010) 118 DRJ 324 (DB); Court on its
own motion (Lajja Devi) & Ors. v. State & Ors. T
Sivakumar v. Inspector of Police HCP No. 382 of 2013;
Indira Nehni Gandhi v. Raj Narain (1975) Suppl SCC
1: [19761 SCR 347; Keshavananda Bharati v. State of
B
Kera/a (1973) 4 SCC 225: [19731 Suppl. SCR l; E.P.
Royappa v. State of Tamil Nadu (1974) 4 SCC 3 : 119741
2 SCR 348 Maneka Gandhi v. Union of India (1978) 1
SCC 248 : [19781 2 SCR 621; A.L. Katra v. Project
and Equipment Corpn. (1984) 3 SCC 316 : [19841 3
c SCR 646; Babita Prasad v. State ofBihar (1993) Suppl.
(3) SCC 268 : [19921 3 Suppl. SCR 438; Ajay Hasia v.
Khalid Mujib Sehravardi (1981) I SCC 722 : [19811 2
SCR 79; Dr. K.R. Lakshmanan v. State of Tamil Nadu
(1996) 2 SCC 226 : [19961 1 SCR 395; State of A.P. v.
McDowell & Co. (1996) 3 SCC 709 : 1996 (3)
D
SCR 721; Shayara Bano v. Union of India &
Ors. (2017) 9 SCC 1; Vishakha v. State of Rajasthan
(1997) 6 SCC 241 : [19971 3 Suppl. SCR 404; Reg v.
Clarence (1888) 22 Q.B.D. 23; Rex v. Clarke (1949) 2
All.E.R.448; Justice K.S. Puttaswamy (Reid.} & Am: v.
E Union ofIndia and Ors. (2017) 10 SCALE 1-referred
to.
Case Law Reference
In the Judgment of Madan B. Lokur, J.:
F AIR 1951 Cal 563 referred to Para 54
[19951 1 Suppl. SCR 462 referred to Para 55
[19541 SCR 930 referred to Para 57
AIR 2003 Ker 259 referred to Para 57
G (1991) 1 sec 57 referred to Para 59
c2009) 9 sec 1 referred to Para 60
[2010[ 5 SCR 381 referred to Para 61
[20121 11 SCR 683 referred to Para 62
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 833

c2016) 10 sec 126 referred to Para 63 A
[2000] 2 SCR 761 referred to Para 66
[19951 6 Suppl. SCR 731 referred to Para 67
(19961 1 SCR 532 referred to Para 68
(20131 5 SCR 1144 referred to Para 69 B

405 us 438 referred to Para 72
[1964] 6 SCR 846 referred to Para 83
[19861 2 SCR 596 referred to Para 84
[20071 12 SCR 991 referred to Para 85 c
[2008] 6 SCR 566 referred to Para 86
[19811 1 SCR 1083 relied on Para 94
[19491 2 K.B. 481 referred to Para 99
D
[19621 SCR 896 relied on Para 100
[19881 3 Suppl. SCR 270 referred to ParalOl
[20171 1SCR158 relied on Para 102
In the Judgment of Deepak Gupta, J.:
E
(2010) 118 DRJ 324 (DB referred to Para 41
HCP No.382 of 2013 referred to Para 43
[1968] 1 SCR 205 relied on Para 53
[19781 2 SCR 537 relied on Para 54 F
(2008] 3 SCR 330 relied on Para 55
[2014) 6 SCR 873 relied on Para 56
(19741 2 SCR 768 relied on Para 58
(1976) SCR 347 referred to Para 62 G
(1973) Suppl. SCR 1 referred to Para 62
(1974] 2 SCR 348 referred to Para 63
11978) 2 SCR 621 referred to Para 64
H
834 SUPREME COURT REPORTS [2017] 13 S.C.R.

A [19841 3 SCR 646 referred to Para 65
119921 3 Suppl. SCR 438 referred to Para 65
(19811 2 SCR 79 referred to Para 65
[1996] 1 SCR 395 referred to Para 65
B [19961 3 SCR 721 referred to Para 66
(2017) 9 sec 1 referred to Para 66
[1997] 3 Suppl. SCR 404 referred to Para 71
(1888) 22 Q.B.D. 23 referred to Para 84
c (1949) 2 All.E.R.448 referred to Para 84
(2017) 10 SCALE 1 referred to Para 86
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
382 of2013
D Under Article 32 of the Constitution of India.
Rana Mukherjee, Sr. Adv., Gaurav Agrawal, Abhikalp Pratap
Singh, Abbay Anturkar, Vikram Srivastava, Ms. Binn Tamta, Shalinder
Saini, Ms. Sadhana Sandhu, B. V. Balaram Das, Gurmeet Singh Makker,
Ms. Daisy Hannah, Ms. Kasturika Kaumudi, B. Krishna Prasad,
E Ms. Jayna Kothari, Ms. Disha Chaudhari, Ms. Anindita Pujari, Ms. Kavita
Bhardwaj, Advs. for the appearing parties.
The Judgments of the Court were delivered by
MADAN B. LOKUR, J. l. The issue before us is limited but
one of considerable public importance - whether sexual intercourse
F between a man and his wife being a girl between 15 and 18 years of age
is rape~ Exception 2 to Section 375 of the Indian Penal Code, 1860 (the
IPC) answers this in the negative, but in our opinion sexual intercourse
with a girl below 18 years of age is rape regardless of whether she is
married or not. The exception carved out in the !PC creates an
unnecessary and artificial distinction between a married girl child and an
G unmarried girl child and has no rational nexus with any unclear objective
sought to be achieved. The artificial distinction is arbitrary and
discriminatory and is definitely not in the best interest of the girl child.
The artificial distinction is contrary to the philosophy and ethos ofArticle
15(3) of the Constitution as well as contrary to Article 21 of the
H Constitution and our commitments in international conventions. It is also
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 835
[MADAN B. LOKUR, J.]

contrary to the philosophy behind some statutes, the bodily integrity of A
the girl child and her reproductive choice. What is equally dreadful, the
artificial distinction turns a blind eye to trafficking of the girl child and
surely each one of us must discourage trafficking which is such a horrible
social evil.
2. We make it clear that we have refrained from making any B
observation with regard to the marital rape of a woman who is 18 years
of age and above since that issue is not before us at all. Therefore we
should not be understood to advert to that issue even collaterally.
The writ petition
3. The petitioner is a society registered on 6th August, 2009 and C
has since been working in the area of child rights. The society provides
technical and hand-holding support to non-governmental organizations
as also to government and multilateral bodies in several States in India.
It has also been involved in legal intervention, research and training on
issues concerning children and their rights. The society has filed a petition D
under Article 32 of the Constitution in public interest with a view to draw
attention to the violation of the rights of girls who are married between
the ages of 15 and 18 years.
4. According to the petitioner, Section 375 of the IPC prescribes
the age of consent for sexual intercourse as 18 years meaning thereby E
that any person having sexual intercourse with a girl child below 18
years of age would be statutorily guilty of rape even if the sexual activity
was with her consent. Almost every statute in India recognizes that a
girl below 18 years of age is a child and it is for this reason that the law
penalizes sexual intercourse with a girl who is below 18 years of age.
Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, ifa F
girl child between 15 and 18 years of age is married, her husband can
have non-consensual sexual intercourse with her, without being penalized
under the IPC, only because she is married to him and for no other
reason. The right of such a girl child to bodily integrity and to decline to
have sexual intercourse with her husband has been statutorily taken G
away and non-consensual sexual intercourse with her husband is not an
offence under the !PC.
5. Learned counsel for the petitioner submitted that absolutely
nothing is achieved by entitling the husband of a girl child between 15
H
836 SUPREME COURT REPORTS [2017] 13 S.C.R.

A and 18 years, of age to have non-consensual sexual intercourse with her.
It was also submitted that whatever be the (unclear) objective sought to
be achieved by this, the marital status of the girl chi Id between 15 and 18
years of age has no rational nexus with that unclear object. Moreover,
merely because a girl child between 15 and 18 years of age is married
does not result in her ceasing to be a child or being mentally or physically
B
capable of having sexual intercourse or indulging in any other sexual
activity and conjugal relations. It was submitted that to this extent
Exception 2 to Section 375 of the !PC is not only arbitrary but is also
discriminatory and contrary to the beneficial intent of Article 15(3) of
the Constitution which enables Parliament to make special provision for
c women and children. In fact, by enacting Exception 2 to Section 375 of
the !PC in the statute book, the girl child is placed at a great disadvantage,
contrary to the visionary and beneficent philosophy propounded by Article
15(3) of the Constitution.
Law Commission of India - 84 th Report
D 6. Learned counsel for the petitioner drew our attention to the
84 th report of the Law Commission of India (LC!) presented on 25th
April, 1980 dealing with the rape of a girl child below the prescribed
minimum age. The report considered the anomalies in the law relating to
rape, particularly in the context of the age of consent for sexual intercourse
E with a girl child. The view expressed by the LC! is quite explicit and is to
be found in paragraph 2.18, 2.19 and 2.20 of the report. The view is that
since the Child Marriage Restraint Act, 1929 prohibits the marriage ofa
girl below 18 years of age, sexual intercourse with a girl child below 18
years of agtl should also be prohibited and the !PC should reflect that
position thereby making sexual intercourse with a girl child below 18
F years of age an offence. These paragraphs read as follows:
2.18. Section 375, fifth clause. - The discussion in the few
preceding paragraphs was concerned with rape constituted by
sexual intercourse without consent. The fifth clause of section
3 75 may now be considered. It is concerned with sexual
G intercourse with a woman under 16 years of age. Such sexual
intercourse is an offence irrespective of the consent of the woman.
2.19. History. - The age of consent has been subjected to
increase more than once in India. The historical development
may, for convenience, be indicated in the forrn of a chart as
H follows:-
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 837
[MADAN B. LOKUR, J.]

A
Year Age of consent Age Minimum
under sec. mentioned in age of
375, 5'" clause, the Exception marriage
I.P.C. to sec. 375, under the
I.P.C Child
Marriage
B
Restraint
Act, 1929

1860 ...... l 0 years 10 years -

l89l(Actl0of 12 years 12 years - c
189 l)

(after the
amendment of
l.P.C.

1925 (after the l 4 years 13 years D
-
amendment of
l.P.C.)

l 929 (after the 14 years 13 years 14 years
passing of the
Child Marriage E
Act)

l 940 (after the 16 years 15 years 15 years
amendment of
the Penal Code
and the Child
F
Marriage Act)

1978 ...... 16 years 15 years 18 years

[as of2017]* (Age of [15 years] [Minimum
consent under age of
*The bracketed Sec. 375, marriage G
portion in this Sixthly of the under the
row has been !PC - 18 years] PCMA,2006
inserted by us. -
l 8(F)/2 l (M)
years]
H
838 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 2.20. Increase in minimum age. - The question to be considered
is whether the age should be increased to 18 years. The minimum
age of marriage now laid down by law (after 1978) is 18 years in
the case of females and the relevant clause of Section 375 should
reflect this changed attitude. Since marriage with a girl below
18 years is prohibited (though it is not void as a matter of
B
personal law), sexual intercourse with a girl below 18 years
should also be prohibited. (Emphasis supplied by us).
Law Commission of India - 172nd Report
7. The issue was re-considered by the LC! in its 172nd report
c presented on 25th March, 2000. In that report, it is recommended that
an exception be added to Section 375 of the !PC to the effect that sexual
intercourse by a man with his own wife, the wife not being under 16
years of age, is not sexual assault. In other words, the earlier
recommendation made by the LC! was not approved.

D 8. Apparently at the stage of discussions, the recommendation of
the LC! (still at the stage of proposal) did not find favour with an NGO
called Saks hi who suggested deletion of the exception. According to the
NGO, "wher~ a husband causes some physical injury to his wife, he is
punishable under the appropriate offence and the fact that he is the
husband of the victim is not an extenuating circumstance recognized by
E law." Therefore, there is no reason why a concession should be made in
the matter of an offence of rape/sexual assault only because the wife
happens to be above 15/16 years of age. The LC! did not agree with the
NGO and the reason given is that ifthe exception that is recommended
is deleted, it '"may amount to excessive interference with the marital
F relationship." In other words, according to the LC! the husband ofa girl
child who is not below 16 years of age can sexually assault and even
rape his wife and the assault or rape would not be punishable - and if it
is made punishable, then it would amount to excessive interference with
the marital relationship. (It may be mentioned that Exception 2 to Section
37 5 of the !PC has not increased the age to 16 years from 15 years as
G recommended by the LC! but has retained it at 15 years. According to
the counter affidavit filed on behalfofthe Union oflndia, the age of 15
years has been kept to give protection to the husband and the wife against
criminalizing the sexual activity between them).

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 839
[MADAN B. LOKUR, J.]

Counter affidavit of the Union of India A
9. Since we have adverted to the counter affidavit filed by the
Union of India opposing the writ petition, we propose to make a very
brief reference to it. A somewhat more detailed reference is made to
the counter affidavit of the Union of India at a later stage.
I 0. For the present, the counter affidavit of the Union of India B
refers to the National Family Health Survey- 3 (of 2005) in which it is
stated that 46% of women in India between the ages of 18 and 29 years
were married before the age of 18 years. It is also estimated, interestingly
but disturbingly, that there are about 23 million child brides in the country.
As far as any remedy available to a child bride is concerned, the counter c
affidavit draws attention to Section 3 of the Prohibition of Child Marriage
Act, 2006 (the PCMA). Under Section 3(1) of the PCMA a child
marriage is voidable at the option of any contracting party who was a
child at the time of the marriage. The marriage can be declared a nullity
in terms of the proviso to Section 3( I) of the PCMA through an
appropriate petition filed by the child within two years of attaining majority D
and by approaching an appropriate court of law. It is also stated that in
terms of Section 13(2)(iv) of the Hindu Marriage Act, 1955 a child bride
can petition for a divorce on the ground that her marriage (whether
consummated or not) was solemnized before she attained the age of 15
years and she has repudiated the marriage after attaining that age but E
before attaining 18 years of age. In other words a child marriage is
sought to be somehow 'legitimized' by the Union oflndia and the onus
for having it declared voidable or a nullity is placed on the child bride or
the child groom.
Documentary material F
11. Apart from but in addition to the legal issue, learned counsel
for the petitioner and learned counsel for the intervener (The Child Rights
Trust) relied on a large amount of documentary material to highlight
several adverse challenges that a girl child might face on her physical
and mental health and some of them could even have an inter-generational
G
impact if a girl child is married below 18 years of age. The girl child
could also face adverse social consequences that might impact her for
the rest of her life.
(a) Reference was made to a report "Delaying Marriage for
Girls in India: A Formative Research to Design
H
840 SUPREME COURT REPORTS [2017] 13 S.C.R.

A Interventions for Changing Norms". This report was prepared
in March 2011 under the supervision of UNICEF India.
( b) Reference was also made to a report "Reducing Child
Marriage in India: A Model to Scale up Results". This report
was prepared in January 2016 and also under the supervision and
B guidance of UNICEF India. The report contains statistics of
widowed, separated and divorced girls who were married between
IO anµ 18 years of age based on Census 2011.
( c) Reference was also made to a useful study "Economic
Impacts of Child Marriage: Global Synthesis Report"
c released in June 2017. This report is a collaborative effort by the
International Centre for Research on Women and the World Bank
and it deals with the impact of child marriages on (i) fertility and
population growth; (ii) health, nutrition, and intimate partner
violence; (iii) educational attainment; (iv) labour force participation,
earnings and welfare, and (v) women's decision-making and other
D impacts. The economic cost of child marriages and implications
has also been discussed in detail in the report. A child marriage is
defined as a marriage or union taking place before the age of 18
years and this definition has been arrived at by relying on a number
of conventions, treaties and international agreements as well as
E resolµtions of the UN Human Rights Council and the UN General
Assembly.
( d) Another extremely useful report referred to is "A Statistical
Analysis of Child Marriage in India based on Census 2011 ".
This report is prepared by a collaborative organization called Young
F Lives and the National Commission for the Protection of Child
Rights and was released quite recently in June 2017.
12. This refers to the consequences of child marriage in Chapter
5. Broadly, it is stated:
"Child marriage is not only a violation of human rights, but is also
G recognized as an obstacle to the development of young people.
The practice of child marriage cut shorts a critical stage of self-
discovery and exploring one's identity. Child marriage is an
imposition of a marriage partner on children or adolescents who
are in no way ready and matured, and thus, are at a loss to
understand the significance of marriage. Their development gets
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 841
[MADAN B. LOKUR, J.]

comprised due to being deprived of freedom, opportunity for A
personal development, and other rights including health and well-
being, education, and participation in civic life and nullifies their
basic rights as envisaged in the United Nation's Convention on
the Right of the Child ratified by India in 1989. Marriage at a
young age prevents both girls and boys from exercising agency in B
making important life decisions and securing basic freedoms,
including pursuing opportunities for education, earning a sustainable
livelihood and accessing sexual health and rights." ......... ..
"The key consequences of child marriage of girls may include
early pregnancy; maternal and neonatal mortality; child health
problems; educational setbacks; lower employment/livelihood
c
prospects; exposure to violence and abuse, including a range of
controlling and inequitable behaviours, leading to inevitable negative
physical and psychological consequences; and limited agency of
girls to influence decisions about their lives.
Census data have demonstrated an upswing of female deaths D
in the age group of 15-19 years. This high mortality rate could be
attributed to the deaths of teenage mothers. Child marriage virtually
works like a double-edged sword; lower age at marriage is
significantly associated with worse outcomes for the child and
worse pregnancy outcomes for the mother. All these factors push E
girls and their families into perpetuation ofintergenerational poverty
and marginalization. The i~pact of early marriage on girls - and
to a lesser extent on boys - is wide-ranging, opines the Innocenti
Digest on child marriage. Child brides often experience overlapping
vulnerabilities - they are young, often poor and undereducated.
This affects the resources and assets they can bring into their F
marital household, thus reducing their decision-making ability. Child
marriage places a girl under the control of her husband and often
in-laws, limiting her ability to voice her opinions and form and
pursue her own plans and aspirations. While child marriage is
bound to have a detrimental effect on boys who would need to G
shoulder the responsibility of a wife and in most cases, have to
also discontinue their education, there is very li.ttle research
evidence to capture the long term economic and psychological
effect on boys who are married early. The Lancet 20 I 5
acknowledges that adolescent boys are not important and
H
842 SUPREME COURT REPORTS (2017] 13 S.C.R.

A neglected part of the equation. The assumption that girls need
more attention than boys is now being challenged.
Looking at the impact of early marriage from rights perspective,
it can be said that the key concerns are denial of childhood and
adolescence, curtailment of personal freedom, deprivation of
B opportunities to develop a full sense of selthood and denial of
psychosocial and emotional well-being reproductive health and
educational opportunity along with consequences described
earlier." (Emphasis supplied by us).
13. There is a specific discussion in the Statistical Analysis on the
c impact of early child birth on health in which it is stated that "girls aged
15 to 19 [years] are twice more likely than older women to die from
childbirth and pregnancy, making pregnancy the leading cause of death
in poor countries for these age groups. Girls from the Scheduled Castes
and Scheduled Tribes were on an average 10 per cent more likely (after
accounting for other variables) to give birth earlier than girls from the
D other castes." It has been found that girls most likely to have had a child
by 19 years (as compared with all other married and unmarried girls)
were from the poorest groups; were more likely to live in rural areas;
had the least educated mothers; had earlier experiences of menarche;
had lower education aspirations; and were less likely to be enrolled in
E school between the age of 12 and 15 years. Being young and immature
mothers, they have little say in decision-making about the number of
children they want, nutrition, health-care etc. Lack of self-esteem or of
a sense of ownership of her own body exposes a woman to repeated
unwanted pregnancies.

F 14. There is also a useful discussion on violence, neglect and
abandonment; psychosocial disadvantage; low self-esteem; low education
and limited employability; human trafficking and under-nutrition, all of
which are of considerable importance for the well-being of a girl child.
We are not dealing with these reports in any detail but draw attention to
G them since they support the view canvassed by learned counsel. All that
we need say is that a reading of these reports gives a good idea of the
variety and magnitude of problems that a girl child who is married between
l 5 and l 8 years of age could ordinarily encounter, including those caused
by having sexual intercourse and child-bearing at an early age.

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 843
[MADAN B. LOKUR, J.]

In-depth Study on all forms of violence against women A
th
15. On 6 July, 2006 the Secretary-General of the United Nations
submitted a report to the General Assembly called the "In-depth Study
on all forms of violence against women". In the chapter relating to
violence against women within the family and harmful traditional practices,
early marriage was one of the commonly identified forms ofviolence. 1 B
Similarly, early marriage was considered a harmful traditional practice'
- a thought echoed a year later in the Study on Child Abuse: India
2007 (referred to later) by the Government of India.
16. An early marriage is explained as involving the marriage of a
child, that is, a person below the age of 18 years. It is stated that "Minor c
girls have not achieved full maturity and capacity to act and lack ability
to control their sexuality. When they marry and have children, their health
can be adversely affected, their education impeded and economic
autonomy restricted. Early marriage also increases the risk of HIV
infection." Among the under-documented forms of violence against
women are included traditional harmful practices, prenatal sex selection, D
early marriage, acid throwing and dowry or "honour" related violence
etc. 3
17. On the concern of appropriate legislation to deal with issues
of violence against women, the right of a woman to bodily integrity and
legislations that allow early marriages, the Secretary General had this to E
say:
"The treaty bodies have expressed concerns about the
scope and coverage of existing legislation, in particular in
regard to: definitions of rape that require use of force and violence
rather than lack of consent; definitions of domestic violence F
that are limited to physical violence; treatment of sexual
violence against women as crimes against the honourofthe family
or crimes against decency rather than violations of women's right
to bodily integrity; use of the defence of "honour" in cases of
violence against women and the related mitigation of sentences;
G
provisions allowing mitigation of sentences in rape cases where
the perpetrator marries the victim; inadequacy of protective
measures for trafficked women, as well as their treatment as
'Paragraph 111
2
Paragraph 118
'Paragraph 222 H
844 SUPREME COURT REPORTS [2017] 13 S.C.R.

A criminals rather than victims; termination of criminal proceedings
upon withdrawal of a case by the victim; penalization of abortion
in rape cases; laws that allow early or forced marriage;
inadequate penalties for acts of violence against women; and
discriminatory penal laws." 4 (Emphasis supplied by us)
B National Policy and National Plan
18. What has been the response of the Government of India to
studies carried out from time to time and viewt expressed? The National
Charter for Children. '003 was notified on 9t February, 2004. While it
failed to define a cluld, we assume that it was framed keeping in mind
c the generally accepted definition of a child as being someone below 18
years of age. Proceeding on this basis, for the present purposes, Clause
11 of the National Charter is of relevance in the context of child
marriages. It recognized that child marriage is a crime and an atrocity
committed against the girl child. It also provided for taking "serious
measures" to speedily abolish the practice of child marriage. Clause 11
D reads:
"l l. a. The State and community shall ensure that crimes and
atrocities conunitted against the girl child, including child marriage,
discriminatory practices, forcing girls into prostitution and
trafficking arc speedily eradicated.
E
b. The State shall in partnership with the community undertake
measures, including social, educati.onal and legal, to ensure that
there is greater respect for the girl child in the family and society.
c. The State shall take serious measures to ensure that the practice
of child marriage is speedily abolished."
F
19. As a first step in this direction, child marriages were criminalized
by enacting the PCMA in 2006 but no corresponding amendment was
made in Section 375 of the !PC, as it existed in 2006, to decriminalize
marital rape of a girl child.
G 20. The National Ch,~rter was followed by the National Policy
for Children notified on 26 April, 2013. The National Policy explicitly
recognized in Clause 2.1 that every person below the age of 18 years is
a child. Among the Guiding Principles for the National Policy was the
recognition that every child has universal, inalienable and indivisible human
H 'Paragraph 277
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 845
[MADAN B. LOKUR, J.]

rights; every child has the right to life, survival, development, education, A
protection and participation; the best interest of a child is the primary
concern in all decisions and actions affecting the child, whether taken by
legislative bodies, courts oflaw, administrative authorities, public, private,
social, religious or cultural institutions.
21. The large 'to do list' in the National Policy led to the National B
Plan of Action for Children, 2016: Safe Children - Happy
Childhood. The National Plan appears to have been made available on
'"
24 January, 2017. While dealing with child marriage, it is stated as
follows:
"In India, between NFHS-3 (2005-06) to RSOC (2013-14), there c
has been a considerable decline in the percentage of women,
between the ages 20-24, who were married before the age of 18
(from 47.4% to 30.3%). The incidence is higher among SC
(34.9%) and ST (31 %) and in families with lowest wealth index
( 44.1 %). Child marriage violates children's basic rights to health,
education, development, and protection and is also used as a means D
of trafficking of young girls.
Child marriage leads to pregnancy during adolescence, posing life-
threatening risks to both mother and child. It is indicated by the
Age-specific Marital Fertility Rate (ASMFR) which is measured
as a number of births per year in a given age group to the total E
number of married women in that age group. SRS 2013 reveals
that in the age group of 15-l 9 years; there has been an upward
trend during the period 2001-2013. ASMFR is higher in the age
group 15-19 years in comparison to 25-29 years."
22. The National Plan of Action for Children recognizes that the F
early marriage of girls is one of the factors for neo-natal deaths; early
marriage poses various risks for the survival, health and development of
young girls and to children born to them and most unfornmately it is also
used as a means of trafficking.
23. A reading of the National Policy and the National Plan of G
Action for Children reveals, quite astonishingly, that even though the
Government oflndia realizes the dangers of early marriages, it is merely
dishing out platitudes and has not taken any concrete steps to protect the
girl child from marital rape, except enacting the Protection of Children
from Sexual Offences Act, 20I2.
H
846 SUPREME COURT REPORTS [2017) 13 S.C.R.

A Human Rights Council
24. The Report of the Working Group on the Universal Periodic
Review for India (issued on 17th July, 2017 without formal editing) for
the 36th Session of the Human Rights Council refers to recommendations
made by several countries to remove the exception relating to marital
B rape from the definition of rape in Section 375 of the l.P.C. In other
words, the issue raised by the petitioner has attracted considerable
international attention and discussion and ought to be taken very seriously
by the Union of India.
25. In our opinion, it is not necessary to detail the contents of
c every report or study placed before us except to say that there is a
strong establisfued link between early marriage and sexual intercourse
with a married girl child between 15 and 18 years of age. There is a
plethora of material to clearly indicate that sexual intercourse with a girl
child below the age of 18 years (even within marriage) is not at all
advisable for her for a variety of reasons, including her physical and
D mental well-being and her social standing- all of which should ordinarily
be of paramount importance to everybody, particularly the State.
26. The social cost of a child marriage (and therefore of sexual
intercourse with a girl child) is itself quite enormous and in the long nm
might not even be worth it. This is in addition to the economic cost to the
E country which would be obliged to take care of infants who might be
malnourished and sickly; the young mother of the infant might also require
medical assist~ce in most cases. All these costs eventually add up and
apparently only for supporting a pernicious practice.
27. We can only express the hope that the Government of India
F and the State Governments intensively study and analyze these and other
reports and take an informed decision on the effective implementation
of the PCMA and actively prohibit child marriages which 'encourages'
sexual intercourse with a girl child. Welfare schemes and catchy slogans
are excellent for awareness campaigns but they must be backed up by
G focused implementation programmes, other positive and remedial action
so that the pendulum swings in favour of the girl child who can then look
forward to a better future.
Provisions of the Indian Penal Code (IPC)
28. Section 375 of the IPC defines 'rape'. This section was insertea
H in the IPC in its present form by an amendment carried out on 3r
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 847
[MADAN B. LOKUR, J.]

February, 2013 and it provides that a man is said to commit rape if, A
broadly speaking, he has sexual intercourse with a woman under
circumstances falling under any of the seven descriptions mentioned in
the section. (A woman is defined under Section 10 of the IPC as a
female human being of any age). Among the seven descriptions is sexual
intercourse against the will or without the consent of the woman; clause
B
'Sixthly' of Section 375 makes it clear that if the woman is under 18
years of age, then sexual intercourse with her - with or without her
consent - is rape. This is commonly referred to as 'statutory rape' in
which the willingness or consent of a woman below the age of 18 years
for having sexual intercourse is rendered irrelevant and inconsequential.
29. However, Exception 2 to Section 375 of the IPC provides that
c
it is not rape if a man has sexual intercourse with a girl above 15 years
of age and if that girl is his wife. In other words, a husband can have
sexual intercourse with his wife provided she is not below 15 years of
age and this is not rape under the IPC regardless of her willingness or
her consent. D
30. However, sexual intercourse with a girl under 15 years of age
is rape, whether it is with or without her consent, against her will or not,
whether it is by her husband or anybody else. This is clear from a reading
of Section 375 of the IPC including Exception 2.
31. Therefore, Section 375 of the IPC provides for three E
circumstances relating to 'rape'. Firstly sexual intercourse with a girl
below 18 years of age is rape (statutory rape). Secondly and byway of
an exception, if a woman is between 15 and 18 years of age then sexual
intercourse with her is not rape if the person having sexual intercourse
with her is her husband. Her willingness or consent is irrelevant under F
this circumstance. Thirdly sexual intercourse with a woman above 18
years of age is rape if it is under any of the seven descriptions given in
Section 375 of the IPC (non-consensual sexual intercourse).
32. The result of the above three situations is that the husband of
a girl child between 15 and 18 years of age has blanket liberty and
G
freedom to have non-consensual sexual intercourse with his wife and he
would not be punishable for rape under the IPC since such non-
consensual sexual intercourse is not rape for the purposes of Section
375 of the IPC. Very strangely, and as pointed out by Sakshi before the
LCI, the husband of a girl child does not have the liberty and freedom
H
848 SUPREME COURT REPORTS [2017] 13 S.C.R.

A under the !PC to commit a lesser 'sexual' act with his wife, as for example,
if the husband of a girl child assaults her with the intention ofoutraging
her modesty, he would be punishable under the provisions of Section 354
of the IPC. In other words, the IPC permits a man to have non-
consensual sexual intercourse with his wife if she is between 15 and 18
years ofage but not to molest her. This view is surprisingly endorsed by
B
the LCI in its 172nd report adverted to above.
Protection of Human Rights Act, 1993
33. The J?rotection of Human Rights Act, 1993 defines "human
rights" in Section c( d) as meaning the rights relating to life, liberty, equality
c and dignity of the individual guaranteed by the Constitution or embodied
in international covenants and enforceable by courts in India. There can
be no doubt that if a girl child is forced by her husband into sexual
intercourse against her will or without her consent, it would amount to a
violation of her human right to liberty or her dignity guaranteed by the
Constitution or at least embodied in international conventions accepted
D by India such as the Convention on the Rights of the Child (the CRC)
and the Convention on the Elimination of All Forms of Discrimination
Against Women (the CEDAW).
Protection of Women from Domestic Violence Act, 2005 (DV Act)

E 34. Section 3 of the Protection of Women from Domestic Violence
Act, 2005 (for short 'the DV Act') provides that if the husband of a girl
child harms or injures or endangers the health, safety, life, limb or well
being, whether mental or physical, of his wife including by causing
physical abuse and sexual abuse, he would be liable to have a protection
order issued against him and pay compensation to his wife. Explanation
F I (ii) of Section 3 defines 'sexual abuse' as including any conduct of a
sexual nature that abuses, humiliates, degrades or otherwise violates the
dignity of a woman.
Prohibition of Child Marriage Act, 2006 (PCMA)
35. One of the more important legislations on the subject of
G
protective rights of children is the Prohibition of Child Marriage Act,
2006 (for short 'the PCMA'). For the purposes of the PCMA, a 'child'
is a male who has not completed 21 years of age and a female who has
not completed 18 years of age and a 'child marriage' means a marriage
to which either contracting party is a child.
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 849
[MADAN B. LOKUR, J.]

36. Section 3 of the PCMA provides that a child marriage is A
voidable at the option of any one of the parties to the child marriage~ a
child marriage is not void, but only voidable. Interestingly, and
notwithstanding the fact that a child marriage is only voidable, Parliament
has made a child marriage an offence and has provided punishments for
contracting a child marriage. For instance, Section 9 of the PCMA provides
B
that any male adult above 18 years of age marrying a child shall be
punishable with rigorous imprisonment which may extend to two years
or with fine which may extend to one lakh rupees or with both. Therefore
regardless of his age, a male is penalized under this section ifhe marries
a girl child. Section l 0 of the PCMA provides that whoever performs,
conducts, directs or abets any child marriage shall be punishable with c
· rigorous imprisonment which may extend to two years and shall be liable
to fine which may extend to one lakh rupees; Section 11 of the PCMA
provides punishment for promoting or permitting solemnization of a child
marriage; and finally Section 13 of the PCMA provides that the
jurisdictional judicial officer may injunct the performance of a child
D
marriage while Section 14 of the PCMA provides that any child marriage
solemnized in violation ofan injunction under Section 13 shall be void.
37. It is quite clear from the above that Parliament is not in favour
of child marriages per se but is somewhat ambivalent about it. However,
Parliament recognizes that although a child marriage is a criminal activity,
the reality of life in India is that traditional child marriages do take place E
and as the studies (referred to above) reveal, it is a harmful practice.
Strangely, while prohibiting a child marriage and criminalizing it, a child
marriage has not been declared void and what is worse, sexual intercourse
within a child marriage is not rape under the IPC even though it is a
punishable offence under the Protection of Children from Sexual Offences F
Act, 2012.
Protection of Children from Sexual Offences Act, 2012 (POCSO)
38. The Protection of Children from Sexual Offences Act, 2012
(for short 'the POCSO Act') is an important statute for the purposes of
our discussion. The Statement of Objects and Reasons necessitating the G
enactment of the POCSO Act makes a reference to data collected by
the National Crime Records Bureau (NCRB) which indicated an increase
in sexual offences against children. The data collected by the NCRB
was corroborated by the Study on Child Abuse: India 2007 conducted
H
850 SUPREME COURT REPORTS [2017] 13 S.C.R.

A by the Ministry of Women and Child Development of the Government
oflndia.
39. While the above Study focuses on child abuse, it does refer to
the harmful traditional practice of child marriage and in this context
adverts to child marriage as being a subtle form of violence against
B children. The,Study notes that there is a realization that if issues of child
marriage are not addressed, it would affect the overall progress "r the
country.
40. The above Study draws attention to the Convention on the
Elimination of All Forms of Discrimination Against Women
C (CEDAW) to which India is a signatory. Article 16.2 thereof provides
"The betrothal and the marriage of a child shall have no legal effect, and
all necessary action, including legislation, shall be taken to specify a
minimum age for marriage and to make the registration of marriages in
an official registry compulsory." 5
D 41. The above Study also makes a reference to gender equity to
the effect that discrimination against girls results in child marriages and
such an imbalance needs to be addressed by bringing about attitudinal
changes in people regarding the value of the girl child.
42. The Preamble to the POCSO Act states that it was enacted
E with reference to Article 15(3) of the Constitution. The Preamble
recognizes th~t the best interest of a child should be secured, a child
being defined under Section 2(d) as any person below the age of 18
years. In fact, securing the best interest of the child is an obligation cast
upon the Government of India having acceded to the Convention on
the Rights of the Child (the CRC). The Preamble to the POCSO Act
F also recognizes that it is imperative that the law should operate "in a
manner that the best interest and well being of the child are regarded as
being of paramount importance at every stage, to ensure the healthy,
physical, emotional, intellectual and social development of the child''.
Finally, the Preamble also provides that "sexual exploitation and sexual
G 5 India becan1e a signatory to the CEDAW Convention on 30th July. 1980 (ratified on

9th July, 1993) but with a reservation to the extent ofn1aking registration ofn1arriage
con1pulsory stating that it is not practical in a vast country like India with its variety of
customs. religions and level of literacy. Nevertheless. the Supren1e Court in the case of
Seema (Smt.) v. Ashwani Kumai: (2006) 2 SCC 5 78 directed the States and Central
Governn1ent to notify Rules n1aking registration of n1arriages con1pulsory. However.
the san1e has not been implen1ented in full.
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 851
[MADAN B. LOKUR, J.]

abuse of children are heinous crimes and need to be effectively A
addressed". This is directly in conflict with Exception 2 to Section 375
of the !PC which effectively provides that the sexual exploitation or
sexual abuse of a girl child is not even a crime, let alone a heinous crime
- on the contrary, it is a perfectly legitimate activity if the sexual
exploitation or sexual abuse of the girl child is by her husband.
B
43. Under Article 34 of the CRC, the Government of India is
bound to "undertake all appropriate national, bilateral and multi-lateral
measures to prevent the coercion of a child to engage in any unlawful
sexual activity". The key words are 'unlawful sexual activity' but the
!PC declares that a girl child having sexual intercourse with her husband
is not 'unlawful sexual activity' within the provisions of the !PC, regardless c
of any coercion. However, for the purposes of the POCSO Act, any
sexual activity engaged in by any person (husband or otherwise) with a
girl child is unlawful and a punishable offence. This dichotomy is certainly
not in the spirit of Article 34 of the CRC.
44. Further, in terms of our international obligations under Article D
1 and Article 34 of the CRC, the Government oflndia must undertake
all appropriate measures to prevent the sexual exploitation or sexual
abuse of any person below 18 years of age since such sexual exploitation
or sexual abuse is a heinous crime. What has the Government of India
done? It has persuaded Parliament to convert what is otherwise E
universally accepted as a heinous crime into a legitimate activity for the
purposes of Section 375 of the !PC if the exploiter or abuser is the
husband of the girl child. But, contrarily the rape of a married girl child
(called 'aggravated penetrative sexual assault' in the POCSO Act) is
made an offence for the purposes of the POCSO Act.
F
45. Section 3 of the POCSO Act defines "penetrative sexual
assault". Clause (n) of Section 5 provides that if a person commits
penetrative sexual assault with a child, then that person actually commits
aggravated penetrative sexual assault if that person is related to the
child, inter alia, through marriage. Therefore, if the husband of a girl
child commits penetrative sexual assault on his wife, he actually commits G
aggravated penetrative sexual assault as defined in Section 5(n) of the
POCSO Act which is punishable under Section 6 of the POCSO Act by
a term of rigorous imprisonment of not less than ten years and which
may extend to imprisonment for life and fine.
H
852 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 46. The duality therefore is that having sexual intercourse with a
girl child between 15 and 18 years of age, the husband of the girl child is
said to have not committed rape as defined in Section 375 of the IPC but
is said to have committed aggravated penetrative sexual assault in terms
of Section 5(n) of the POCSO Act.
B 47. There is no real or material difference between the definition
of rape in the terms of Section 375 of the IPC and penetrative sexual
assault in the terms of Section 3 of the POCSO Act.'' The only difference
is that the definition of rape is somewhat more elaborate and has two
exceptions but the sum and substance of the two definitions is more or
less the same and the punishment (under Section 376( I) of the IPC) for
c being found guilty of committing the offence of rape is the same as for
penetrative sexual assault (under Section 4 of the POCSO Act). Similarly,
the punishment for 'aggravated' rape under Section 376(2) of the !PC is
the same as for aggravated penetrative sexual assault under Section 6
of the POCSO Act. Consequently, it is immaterial if a person is guilty of
D the same sexual activity under the provisions of the POCSO Act or the

r. 3. Penetrative sexual assault.-A person is said to con1n1it "penetrative sexual
assault" if-
(a) he penetrates his penis. to any extent. into the vagina, mouth, urethra or anus
of a child or 1uakes the child to do so with hi1n or any other person; or
E (b) he inserts. to any extent. any object or a part of the body. not being the penis.
into the vagina. the urethra or anus of the child or n1akes the child to do so with
hin1 or any other person; or
(c) he n1anipulatcs any part of the body of the child so as to cause penetration into
the vagina. urethra. anus or any part of body of the child or n1akcs the child to
do so with hin1 or any other person; or
(d) he applies his 111outh to the penis. vagina. anus. urethra of the child or makes the
F child to do so to such person or any other person

375. Rape.-A 111an is said to comn1it "rape" if he-
( a) penetrates his penis, ro any extent. into thc vagina. n1outh. urethra or anus of
a won1an or makes her to do so \Vith him or any other person; or
(b} inserts, to any extent. any object or a part of the body. not being the penis. into
the vagina, the urethra or anus of a wo111an or n1akcs her to do so with hin1 or
G any other person: or
(c) manipulates any part of the body of a woman so as to cause penetration into
the vagina. urethra. anus or any part of body of such wo111an or 111akes her to do
so with him or any other person: or
(a') applies his n1outh to the vagina. anus. urethra of a won1an or n1akes her to do so
with hin1 or any other person,

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 853
[MADAN B. LOKUR, J.]

provisions of the IPC - the end result is the same and only the forum of A
trial changes. In a violation of the provisions of the POCSO Act, a
Special Court constituted under Section 28 of the said Act would be the
Trial Court but the ordinary criminal court would be the Trial Court for
an offence under the JPC.

48. At this stage it is necessary to refer to Section 42-A inserted B
in the POCSO Act by an amendment made on 3rd February, 2013. This
section reads:

42-A. Act not in derogation of any other law.-The provisions
of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force and, in case c
ofany inconsistency, the provisions of this Act shall have ove1Tiding
effect on the provisions of any such law to the extent of the
inconsistency.

The consequence of this amendment is that the provisions of the POCSO
D
Act will override the provisions of any other law (including the !PC) to
the extent of any inconsistency.

49. One of the questions that arises forour consideration is whether
there is any incongruity between Exception 2 to Section 375 of the !PC
and Section 5(n) of the POCSO Act and which provision overrides the
E
other. To decide this, it would be necessary to keep Section 42-A of the
POCSO Act in mind as well as Sections 5 and 41 of the IPC which read:

5. Certain laws not to be affected by this Act.-Nothing in
this Act shall affect the provisions of any Act for punishing mutiny
and desertion of officers, soldiers, sailors or airmen in the service F
of the Government of India or the provisions of any special or
local law.

41. "Special law".-A "special law" is a law applicable to a
particular subject.

50. These two provisions are of considerable importance in resolving G
the controversy and conflict presented before us.
Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ
Act)

H
854 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 51. The Juvenile Justice (Care and Protection of Children) Act,
2015 (the JJ Act) is also relatable to Article 15(3) of the Constitution.
Section 2(12) of the JJ Act defines a child as a person who has not
completed 18 years of age. A child in need of care and protection is
defined in Section 2( 14) of the JJ Act, inter alia, as a child "who is at
imminent risk of marriage before attaining the age of marriage and whose
B
parents, family members, guardian and any other persons are likely to
be responsible for solemnization of such marriage". Clearly a girl child
below 18 years of age and who is sought to be married is a child in need
of care and protection. She is therefore, required to be produced before
a Child Wei fate Committee constituted under Section 27 of the JI Act
c so that she could be cared for, protected and appropriately rehabilitated
or restored to society.
Brief summary of the existing legislations
52. It is obvious from a brief survey of the various statutes referred
to above that a child is a person below 18 years of age who is entitled to
D the protection of her human rights including the right to live with dignity;
if she is unfortunately married while a child, she is protected from domestic
violence, both physical and mental, as well as from physical and sexual
abuse; if she is unfortunately married while a child, her marriage is in
violation of the law and therefore an offence and such a marriage is
E voidable at her instance and the person marrying her is committing a
punishable offence; the husband of the girl child would be committing
aggravated penetrative sexual assault when he has sexual intercourse
with her and is thereby committing a punishable offence under the
POCSO Act. The only jarring note in this scheme of the pro-child
legislations is to be found in Exception2 to Section 375 of the !PC which
F provides that sexual intercourse with a girl child between 15 and 18
years of age is not rape if the sexual intercourse is between the girl child
and her husband. Therefore, the question of punishing the husband simply
does not arise. A girl child placed in such circumstances is a child in
need of care and protection and needs to be cared for, protected and
G appropriately rehabilitated or restored to society. All these 'child-friendly
statutes' are essential for the well-being of the girl child (whether married
or not) and are protected by Article 15(3) of the Constitution. These
child-friendly statutes also link child marriages and sexual intercourse
with a girl child and draw attention to the adverse consequences of both.

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 855
[MADAN B. LOKUR, J.]

Article 15(3) of the Constitution A
53. Article 15(3) of the Constitution enables and empowers the
State to make special provision for the benefit of women and children.
The Constituent Assembly debated this provision [then Article 9(2) of
the draft Constitution] on 29th November, 1948. Prof. K.T. Shah
suggested an amendment to the said Article ("Nothing in this article B
shall prevent the State from making any special provision for women
and children") so that it would read: "Nothing in this article shall prevent
the State from making any special provision for women and children or
for Scheduled Castes or backward tribes, for their advantage, safeguard
or betterment." The view expressed was:
c
"Sir, it must be distinguished from the preceding article. I read it,
at any rate, that this is a provision for discrimination in favour of
women and children, to which I have added the Scheduled Castes
or backward tribes. This discrimination is in favour of particular
classes of our society which, owing to an unfortunate legacy of
the past, suffer from disabilities or handicaps. Those, I think, may D
require special treatment; and if they do require it, they should be
permitted special facilities for some time so that real equality of
citizens be established.
The rage for equality which has led to provide equal citizenship
and equal rights for women has sometimes found exception in E
regard to special provisions that, in the long range, in the interest
of the country or of the race, exclude women from certain
dangerous occupations, certain types of work. That, I take it, is
not intended in any way to diminish their civic equality or status as
citizens. It is only intended to safeguard, protect or lead to their F
betterment in general; so that the long-range interests of the country
may not suffer."
The amendment was negatived by Dr. Ambedkar in the following manner:
"With regard to amendment No. 323 moved by Professor K.T.
Shah, the object of which is to add "Scheduled Castes" and G
"Scheduled Tribes" along with women and children, I am afraid it
may have just the opposite effect.
The object which all of us have in mind is that the Scheduled
Castes and Scheduled Tribes should not be segregated from the
general public. H
856 SUPREME COURT REPORTS [2017] 13 S.C.R.

A For instance. none of us, I think, would like that a separate school
should be established for the Scheduled Castes when there is a
general school in the village open to the children of the entire
community. If these words arc added, it will probably give a handle
for a State to say, 'Well, we are making special provision for the
Scheduled Castes'. To my mind they can safely say so by taking
B
shelter under the article if it is amended in the manner the Professor
wants it. I therefore think that it is not a desirable amendment."
The response given by Dr. Ambedkar suggests that he certainiy favoured
special provisions for women and children with a view to integrate them
into society and to take them out of patriarchal control. But a similar
c integration could not be achieved by making special provisions for
Scheduled Castes and Scheduled Tribes - it would have the opposite
effect and further segregate them from the general public.
54. What clearly emerges from this discussion is that Article 9(2)
of the draft Constitution [now Article 15(3)] was intended to discriminate
D in favour of women and children - a form of affirmative action to their
advantage. This intention has been recognized by decisions of this Court
and of some High Courts. The earliest such decision is of the Calcutta
High Court in Sri Mahadeb Jiew v. Dr. B.B. Sen' in which it was said
that: 'The special provision for women in Article 15(3) cannot be
constrned as authorizing a discrimination against women, and the word
E
"for" in the context means "in favour of'."
55. In Government of A.P. v. P.B. Vijayakumar' affirmative
action for women (and children) was recognized in paragraphs 7 and 8
of the Report in the following words:
"The insertion of clause (3) of Article 15 in relation to women is a
F
recognition of the fact that for centuries, women of this country
have been socially and economically handicapped. As a result,
they are unable to participate in the socio-economic activities of
the nation on a footing of equality. It is in order to eliminate
this socio-economic backwardness of women and to
G empower them in a manner that would bring about effective
equality between men and women that Article 15(3) is placed
in Article 15. Its object is to strengthen and improve the
status of women ..... .

'AIR 1951 Cal 563
H • (1995J 4 sec 520
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 857
[MADAN B. LOKUR, J.]

What then is meant by "any special provision for women" in Article A
15(3)? This "special provision", which the State may make to
improve women's participation in all activities tmder the supervision
and control of the State can bein the form of either affirmative
action or reservation." .... (Emphasis supplied by us)
56. YusufAbdul Aziz v. State ofBombay' is a Constih1tion Bench B
,kcision of this Court in which the constitutional validity of Section 497
of the !PC was challenged on the ground that it unreasonably 'exempts'
a wife from being punishable for an offence of adultery and therefore
should be interpreted restrictively. Rejecting the contention that Article
15(3) of the Constitution places any restriction on the legislative power
of Parliament, it was said: c
"It was argued that clause (3) [of Article 15 of the Constitution]
should be confined to provisions which are beneficial to women
and cannot be used to give them a licence to commit and abet
crimes. We are unable to read any such restriction into the clause;
nor are we able to agree that a provision which prohibits D
punishment is tantamount to a licence to commit the offence of
which punishment has been prohibited."
57. The view that Article 15(3) is intended to benefit women has
also been accepted in Cyril Britto v. Union of India'°wherein it was
held that prohibition from arrest or detention of women in execution ofa E
money decree under Section 56 of the Civil Procedure Code is a special
provision calculated to ensure that a woman judgment-debtor is not put
to the ignominy or arrest and detention in civil prison in execution of a
money decree and that this provision is referable to Article 15(3) of the
Constitution. A similar view was taken in respect of the same provision F
in the Civil Procedure Code in Shrikrishna Eknath Godbole v. Union
of India."
58. It is quite clear therefore that Article 15(3) of the Constitution
cannot and ought not to be interpreted restrictively but must be given its
full play. Viewed from this perspective, it seems to us that legislation G
intended for affirmative action in respect of a girl child must not only be
liberally construed and interpreted but must override any other legislation

9
1954 SCR 930
"AIR 2003 Ker 259
"PIL No. 166/2006 decided on 21st October, 2016
H
858 SUPREME COU!U REPORTS [20 l 7] l3 S.C:.R.

A that seeks to restrict the benefit made available to a girl child. This would
only emphasize \he spirit of Article l 5(3) of the Constitution.
Right to bodily integrity and reproductive choice
59. The right to bodily integrity and the repruductiLe Lhoicc "f
any \Vornan has been the subject of discussion in quite a fe\V decisions
B of this Court. The discu"ion has been wide-ranging and several facets
of these concepts have been considered from time to time. The right to
bodily integrity was initially recognized in the context of privacy in State
of Maharashtra 1•. Madhakar Narayan Mardikar" wherein it was
observed that no one has any right to violate the person of anyone else,
including of an 'unchaste' woman. It was said:
c
.. The High Court observes that since Banubi is an unchaste woman
it would be extremely unsafe to allo" the fortune and career of a
government onic·ial t\l be put in jeopardy upon the uncorroborated
version of sud1 a 1Yoman who makes no secret of her illicit intimacy
'' ith another person. She was honest enough to admit the dark
0 side of her life. Even a \\'Otnan of t.'asy \'irtue is entitled to
privacy and no one can inrndc her privacy as and when he
likes. So also it is not open to any and every person to
violate h¢r person as and when he wishes. She is entitled
to protect her person if there is an attempt to violate it
E against her wish. She is equally entitled to the protedion oflaw."
(Emphasis supplied by us)
60. !n Suchita Srivmtava v. Chandigarh Administration'' the
right to make a reprodw;tive choice was equated with personal liberty
under Article 2 l of the Constitution, privacy, dignity and bodily integrity.
It includes t!1e right tu abstain from procreating. In paragraph 22 of the
F
R«;. Jrt , t was held:
"There is no doubt that a woman's right to make reproductive
choices i. also a dimension of "personal liberty" as understood
under Article'.'' of the Constitution of India. It is important to
recognise that rcpt oducthe choices can be exercised to
G procreate as well as to abstain from procreating. The crucial
eonsiduation is that a woman's right to privacy, dignity and
bodily integrity should be respected. This means that there

"(1991) 1 sec .I~
"(20U9J 9 sec 1
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 859
[MADAN B. LOKUR, J.]

should be no restriction whatsoever on the exercise of A
reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence
on use of contraceptive methods. Furthermore, women are
also free to choose birth control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion, B
reproductive rights include a woman's entitlement to carry a
pregnancy to its full term, to give birth and to subsequently raise
children. However, in the case of pregnant women there is also a
"compelling State interest" in protecting the life of the prospective
child. Therefore, the termination of a pregnancy is only permitted
when the conditions specified in the applicable statute have been C
fulfilled. Hence, the provisions of the MTP Act, 1971 can also be
viewed as reasonable restrictions that have been placed on the
exercise of reproductive choices." (Emphasis supplied by us)

61. In issues of criminal law, investigations and recording of
statements, the bodily integrity of a witness has been accepted by this D
Court in Se/vi v. State of Karnataka 14wherein it was held in paragraph
103 of the Report:

"The concerns about the "voluntariness" of statements allow a
more comprehensive account of this right. If involuntary statements
were readily given weightage during trial, the investigators would E
have a strong incentive to compel such statements-often through
methods involving coercion, threats, inducement or deception.
Even if such involuntary statements are proved to be true, the
law should not incentivise the use of interrogation tactics
that violate the dignity and bodily integrity of the person F
being examined." (Emphasis supplied by us)

62. Ritesh Sinha 1'. State of Uttar Pradesh 15 was a case relating
to the collection of a voice sample during the course of investigation by
the police. Relying of Sell>i it was held that: "In a country governed by
the rule oflaw, police actions which are likely to affect the bodily integrity G
of a person or likely to affect his personal dignity must have legal
sanction."

" (20 IO) 7 sec 263
"(2013) 2 sec 357
H
860 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 63. Finally, in Devika Biswas v. Union ofIndia" it was observed
that "Over time, there has been recognition of the need to respect and
protect the reproductive rights and reproductive health of a person."
This is all the more so in the case of a girl child who has little or no say
in reproduction after an early marriage. As observed in Suchita
Srivastava ...... the "best interests" test requires the Court to ascertain
B
the course of action which would serve the best interests of the person
in question."
64. The discussion on the bodily integrity of a girl child and the
reproductive choices available to her is important only to highlight that
she cannot be treated as a commodity having no say over her body or
c someone who has no right to deny sexual intercourse to her husband.
The human rights of a girl child are very much alive and kicking whether
she is married or not and deserve recognition and acceptance.
Rape or penetrative sexual assault

D 65. Whether sexual intercourse that a husband has with his wife
who is between 15 and 18 years of age is described as rape (not an
offence under Exception 2 to Section 375 of the !PC) or aggravated
penetrative sexual assault (an offence under Section 5(n) of the POCSO
Act and punishable under Section 6 of the POCSO Act) the fact is that
it is rape as conventionally understood, though Parliament in its wisdom
E has chosen to not recognize it as rape for the purposes of the IPC. That
it is a heinous crime which also violates the bodily integrity of a girl child,
causes trauma and sometimes destroys her freedom of reproductive
choice is a composite issue that needs serious consideration and
deliberation.
F 66. There have been several decisions rendered by this Court
highlighting the horrors of rape. In State of Karnataka v Krishnappa 17
an 8 year girl was raped and it was held in paragraph 15 of the Report:
"Sexual violence apart from being a dehumanising act is an
unlawful intrusion of the right to privacy and sanctity of a female.
G It is a serious blow to her supreme honour and offends her self-
esteem and dignity - it degrades and humiliates the victim
and where the victim is a helpless innocent child, it leaves
behind a traumatic experience." (Emphasis supplied by us)

"(2016) 10 sec 726
H "(2000) 4 sec 490
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 861
[MADAN B. LOKUR, J.)

67. In Bodhisattwa Gautam v. Subhra Chakraborty" it was A
observed by this Court that rape is a crime not only against a woman but
against society. It was held in paragraph I 0 of the Report that:
"Rape is thus not only a crime against the person of a woman
(victim), it is a crime against the entire society. It destroys the
entire psychology of a woman and pushes her into deep B
emotional crisis. It is only by her sheer will-power that she
rehabilitates herself in the society which, on coming to know of
the rape, looks down upon her in derision and contempt. Rape is,
therefore, the most hated crime. It is a crime against basic human
rights and is also violative of the victim's most cherished of the
Fundamental Rights, namely, the Right to Life contained in Article C
21. To many feminists and psychiatrists, rape is less a sexual
offence than an act of aggression aimed at degrading and
humiliating women. The rape laws do not, unfortunately, take care
of the social aspect of the matter and are inept in many respects."
(Emphasis supplied by us) D
68. About a month later, it was pithily stated in State ofPunjab v.
Gurmit Singh"
"We must remember that a rapist not only violates the victim's
privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape E
is not merely a physical assault - it is often destrnctive of the
whole personality of the victim. A murderer destroys the physical
body of his victim, a rapist degrades the very soul of the helpless
female." (Emphasis supplied by us)
69. There are several decisions in which similar observations have
F
been made by this Court and it is not necessary to multiply the cases.
However, reference may be made to a fairly recent decision in State of
Haryana v. Janak Singh'" wherein reference was made to
Bodhisattwa Gautam and it was observed in paragraph 7 of the Report:
"Rape is one of the most heinous crimes committed against a
G
woman. It insults womanhood. It violates the dignity of a woman
and erodes her honour. It dwarfs her personality and reduces

" ( 1996) 1 sec 490
"(1996) 2 sec 384
"(2013)9SCC431 H
S62 SUPREME COURT REPORTS [2017113 S.C.R.

A her confidence level. It violates her right to life guaranteed under
Article 2 l of the Constitution of India." (Emphasis supplied by
us)
70. If such is the traumatic impact that rape could and does have
on an adult victim, we can only guess what impact it could have on a girl
R child· and yet it is not a criminal offence in the terms of Exception 2 to
Section 3 75 orthe !PC but is an offence under the POCSO Act only. An
anomalous sta~ of affairs exists on a combined reading of the !PC and
the POCSO Act. An unmarried girl below 18 years of age could be a
victim of rape under the IPC and a victim of penetrative sexual assault
under the POCSO Act. Such a victim might have the solace (if we may
c say so) of pro$ecuting the rapist. A married girl between 15 and 18
years of age could be a victim of aggravated penetrative sexual assault
under the POCSO Act, but she cannot be a victim of rape under the !PC
if the rapist is her husband since the !PC does not recognize such
penetrative sexual assault as rape. Therefore such a girl child has no
D recourse to law under the provisions of the !PC notwithstanding that the
marital rape wuld degrade and humiliate her, destroy her entire
psychology pushing her into a deep emotional crisis and dwarf and destroy
her whole personality and degrade her very soul. However, such a victim
could prosecute the rapist under the POCSO Act. We see no rationale
for such an artificial distinction.
E
71. While we are not concerned with the general question of
marital rape of an adult woman but only with marital rape of a girl child
between 15 and 18 years ofage in the context of Exception 2 to Section
375 of the !PC, it is worth noting the view expressed by the Committee
on Amendments to Criminal Law chaired by Justice J.S. Verma
f (Retired). In paragraphs 72, 73 and 74 of the Report it was stated that
the out-dated notion that a wife is no more than a subservient chattel of
her husband has since been given up in the United Kingdom. Reference
was also made to a decision of the European Commission of Human
Rights which endorsed the conclusion that "a rapist remains a rapist
G regardless of his relationship with the victim." The relevant paragraphs
of the Report read as follows:
"'72. The exemption for marital rape stems from a long out-dated
notion of marriage which regarded wives as no more than the
property of their husbands. According to the common law of
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 863
[MADAN B. LOKUR, J.]

coverture, a wife was deemed to have consented at the time of A
the marriage to have intercourse with her husband at his whim.
Moreover, this consent could not be revoked. As far back as 1736,
Sir Matthew Hale declared: 'The husband cannot be guilty of
rape committed by himself upon his lawfzil wife, for by their
mutual matrimonial consent and contract the wife hath given
B
herself up in this kind unto her husband which she cannot
retract'.
73. This immunity has now been withdrawn in most major
jurisdictions. In England and Wales, the House of Lords held in
199 l that the status of married women had changed beyond all
recognition since Hale set out his proposition. Most importantly,
c
Lord Keith, speaking for the Court, declared, 'marriage is in
modern times regarded as a partnership of equals, and no
longer one in which the wife must be the subservient chattel of
the husband.'
74. Our view is supported by the judgment of the European D
Commission of Human Rights in C.R. '' UK [C.R. v UK Pub!.
ECHR, Ser.A, No. 335-C] which endorsed the conclusion that a
rapist remains a rapist regardless of his relationship with
the victim. Importantly, it acknowledged that this change in the
common law was in accordance with the fundamental objectives E
of the Convention on Human Rights, the very essence of which is
respect for human rights, dignity and freedom. This was given
statutory recognition in the Criminal Justice and Public Order Act
1994.'' (Emphasis supplied by us)
72. In Eise11stadt v. Baird21 the US Supreme Court observed F
that a "marital couple is not an independent entity with a mind and heart
of its own, but an association of two individuals each with a separate
intellectual and emotional makeup."
73. On a combined reading of C.R. 1•. UK andEise11stadt v. Baird
it is quite clear that a rapist remains a rapist and marriage with the victim G
does not convert him into a non-rapist. Similarly, a rape is a rape whether
it is described as such or is described as penetrative sexual assault or
aggravated penetrative sexual assault. A rape that actually occurs cannot
legislatively be simply wished away or legislatively denied as non-existent.
"405 US 438, 31LEd2d 349, 92 S Ct 1092
H
864 SUPREME COURT REPORTS [2017] 13 S.C.R.

A Harmonizing the IPC, the POCSO Act, the JJ Act and the PCMA
74. There is an apparent conflict or incongruity between the
provisions of the !PC and the POCSO Act. The rape of a married girl
child (a girl child between 15 and 18 years of age) is not rape under the
!PC and therefore not an offence in view of Exception 2 to Section 3 7 5
B thereof but it is an offence of aggravated penetrative sexual assault
under Section 5(n) of the POCSO Act and punishable under Section 6
of that Act. This conflict or incongrnity needs to be resolved in the best
interest of the girl child and the provisions of various complementary
statutes need to be harmonized and read purposively to present an
articulate whole.
c
75. The most obvious and appropriate resolution of the conflict
has been provided by the State ofKarnataka- the State Legislature has
inserted sub-Section (IA) in Section 3 of the PCMA (on obtaining the
assent of the President on 20th April, 2017) declaring that henceforth
every child marriage that is solemnized is void ab initio. Therefore, the
D husband of a girl child would be liable for punishment for a child marriage
under the PCMA, for penetrative sexual assault or aggravated penetrative
sexual assault under the POCSO Act and if the husband and the girl
child are living together in the same or shared household for rape under
the !PC. The relevant extract of the Karnataka amendment reads as
E follows:
"(I A) Notwithstanding anything contained in sub-section ( 1) [of
Section of the PCMA] every child marriage solemnized on or
after the date of coming into force of the Prohibition of Child
Marriage (Karnataka Amendment) Act, 2016 shall be void ab
p initio".
76. It would be wise for all the State Legislatures to adopt the
route taken by Karnataka to void child marriages and thereby ensure
that sexual intercourse between a girl child and her husband is a punishable
offence under the POCSO Act and the !PC. Assuming all other State
G Legislatures do not take the Karnataka route, what is the correct position
in law?
77. There is no doubt that pro-child statutes are intended to and
do consider the best interest of the child. These statutes have been enacted
in the recent past though not effectively implemented. Given this situation,
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 865
[MADAN B. LOKUR, J.)

we are of opinion that a few facts need to be acknowledged and A
accepted. Firstly, a child is and remains a child regardless of the
description or nomenclature given to the child. It is universally accepted
in almost all relevant statutes in our country that a child is a person
below 18 years ofage. Therefore, a child remains a child whether she is
described as a street child or a surrendered child or an abandoned child
B
or an adopted child. Similarly, a child remains a child whether she is a
married child or an unmarried child or a divorced child or a separated
child or a widowed child. At this stage we are reminded of Shakespeare's
eternal view that a rose by any other name would smell as sweet - so
also with the status ofa child, despite any prefix. Secondly, the age of
consent for sexual intercourse is definitively 18 years and there is no c
dispute about this. Therefore, under no circumstance can a child below
18 years ofage give consent, express or implied, for sexual intercourse.
The age of consent has not been specifically reduced by any statute and
unless there is such a specific reduction, we must proceed on the basis
that the age of consent and willingness to sexual intercourse remains at
D
18 years ofage. Thirdly, Exception 2 to Section 375 of the IPC creates
an artificial distinction between a married girl child and an unmarried girl
child with no real rationale and thereby does away with consent for
sexual intercourse by a husband with his wife who is a girl child between
15 and 18 years ofage. Such an unnecessary and artificial distinction if
accepted can again be introduced for other occasions for divorced E
children or separated children or widowed children.
78. What is sought to be achieved by this artificial distinction is
not at all clear except perhaps to acknowledge that child marriages are
taking place in the country. Such child marriages certainly cannot be in
the best interest of the girl child. That the solemnization of a child marriage F
violates the provisions of the PCMA is well-known. Therefore, it is for
the State to effectively implement and enforce the law rather than dilute
it by creating artificial distinctions. Can it not be said, in a sense, that
through the artificial distinction, Exception 2 to Section 375 of the !PC
encourages violation of the PCMA? Perhaps 'yes' and looked at from
another point of view, perhaps 'no' for it cannot reasonably be argued G
that one statute (the !PC) condones an offence under another statute
(the PCMA). Therefore the basic question remains - what exactly is the
artificial distinction intended to achieve?

H
866 SUPREME COURT REPORTS [20 l 7] l 3 S.C.R.

A Justification given by the Union of India
79. The only justification for this artificial distinction has been
culled out by learned counsel for the petitioner from the counter affidavit
filed by Union of India. This is given in the written submissions filed by
learned counsel for the petitioner and the justification (not verbatim)
B reads as follows:
i) Economic and educational development in the country is still
uneven and child marriages are still taking place. It has been,
therefore, decided to retain the age of 15 years under
Exception 2 of Section 375 of!PC so as to give protection to
c husband and wife against criminalizing the sexual activity
between them.
ii) As per National Family Health Survey-Ill, 46% of women
b~t:ween the ages 18-29 years in India were married before
the age of I 8. It is also estimated that there are 23 million
D child brides in the country. Hence, criminalizing the
consummation of a marriage union with a serious offence
such as rape would not be appropriate and practical.
iii) Providing punishment for child marriage with consent does
not appear to be appropriate in view of socio-economic
E conditions of the country. Thus, the age prescribed in
E1<ception 2 of Section 375 of !PC has been retained
c@nsidering the basic facts of the still evolving social norms
and issues.
iv) The Law Commission also recommended for raising the age
from 15 years to 16 years and it was incorporated in the
F
Criminal Law (Amendment) Ordinance, 2013. However, after
wide ranging consultations with various stakeholders it was
further decided to retain the age at 15 years.
v) Exception 2 of Section 375 of !PC envisages that if the
marriage is solemnized at the age of 15 years due to traditions,
G
it should not be a reason to book the husband in the case of
offence of rape under the !PC.
vi) It is also necessary that the provisions of law should be in
such a manner that it cannot affect a particular class of society.

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 867
[MADAN B. LOKUR, J.]

Retaining the age of 15 years in Exception 2 of Section 375 A
of IPC has been provided considering the social realities of
the nation.
80. The above justifications given by the Union oflndia are really
explanations for inserting Exception 2 in Section 375 of the !PC. Besides,
they completely side track the issue and overlook the provisions of the R
PCMA, the provisions of the JJ Act as well as the provisions of the
POCSO Act. Surely, the Union of India cannot be oblivious to the
existence of the trauma faced by a girl child who is married between 15
and 18 years of age or to the three pro-child statutes and other human
rights obligations. That these facts and statutes have been overlooked
confirms that the distinction is artificial and makes Exception 2 to Section
c
375 of the !PC all the more arbitrary and discriminatory.
81. During the course of oral submissions, three further but more
substantive justifications were given by learned counsel for the Union of
India for making this distinction. The first justification is that by virtue of
getting married, the girl child has consented to sexual intercourse with D
her husband either expressly or by necessary implication. The second
justification is that traditionally child marriages have been performed in
different parts of the country and therefore such traditions must be
respected and not destroyed. The third justification is that paragraph
5.9.1 of the 167th report of the Parliamentary Standing Committee of E
the Raj ya Sabha (presented in March 2013) records that several Members
felt that marital rape has the potential of destroying the institution of
marnage.
82. In law, it is difficult to accept any one of these justifications.
There is no question of a girl child giving express or implied consent for F
sexual intercourse. The age of consent is statutorily and definitively fixed
at 18 years and there is no law that provides for any specific deviation
from this. Therefore unless Parliament gives any specific indication (and
it has not given any such indication) that the age of consent could be
deviated from for any rational reason, we cannot assume that a girl child
who is otherwise incapable of giving consent for sexual intercourse has G
nevertheless given such consent by implication, necessary or otherwise
only by virtue of being married. It would be reading too much into the
mind of the girl child and assuming a state of affairs for which there is
neither any specific indication nor any warrant. It must be remembered
H
868 SUPREME COURT REPORTS [2017] 13 S.C.R.

A that those days are long gone when a married woman or a married girl
child could be treated as subordinate to her husband or at his beck and
call or as his property. Constitutionally a female has equal rights as a
male and no statute should be interpreted or understood to derogate
from this position. If there is some theory that propounds such an
unconstitutional myth, then that theory deserves to be completely
B
demolished.
83. Merely because child marriages have been performed in
different parts of the country as a part of a tradition or custom does not
necessarily mean that the tradition is an acceptable one nor should it be
sanctified as S\llCh. Times change and what was acceptable the few
c decades ago may not necessarily be acceptable today. This was noted
by a Constitution Bench of this Court (though in a different context) in
State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. 22 that:
"But, by the passage of time, considerations of necessity and
expediency would be obliterated, and the grounds which justified
D classification of geographical regions for historical reasons may
cease to be valid."
84. Similarly, in Rattan Arya I'. State of Tamil Nadu 23 it was
observed that judicial notice could be taken of a change in circumstances.
It was held:
E
"It certainly cannot be pretended that the provision is intended to
benefit the weaker sections of the people only. We must also
observe here that whatever justification there may have been in
1973 when Section 30(ii) [of the Tamil Nadu Buildings (Lease
and Rent Control)Act, 1960] was amended by imposing a ceiling
F of Rs 400 on rent payable by tenants of residential buildings to
entitle them to seek the protection of the Act, the passage of time
has made the ceiling utterly unreal. We are entitled to take
judicial notice of the enormous multifold increase of rents
throughout the country, particularly in urban areas. It is
common knowledge today that the accommodation which
G
one could have possibly got for Rs 400 per month in 1973
will today cost at least five times more. In these days of
universal, day to day escalation of rentals any ceiling such as that

" (I 964) 6 SCR 846
H "(1986) 3 sec 385
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 869
[MADAN B. LOKUR, J.]

imposed by Section 30(ii) in 1973 can only be considered to be A
totally artificial and irrelevant today. As held by this court in Motor
General Traders v. State ofA.P. 24 a provision which was perfectly
valid at the commencement of the Act could be challenged later
on the ground ofunconstitutionality and struck down on that basis.
What was once a perfectly valid legislation, may in course of B
time, become discriminatory and liable to challenge on the ground
of its being violative of Article 14." (Emphasis supplied by us)
85. In An11j Garg v. Hotel Association of India" this Court was
concerned with the constitutional validity of Section 30 of the Punjab
Excise Act, 1914 which prohibited employment of "any man under the
age of25 years" or "any woman" in any part of such premises in which
c
liquor or an intoxicating drug is consumed by the public. While upholding
the view of the Delhi High Court striking down the provision as
unconstitutional, this Court held in paragraphs 46 and 4 7 of the Report:
"It is to be borne in mind that legislations with pronounced
"protective discrimination" aims, such as this one, potentially serve D
as double-edged swords. Strict scrutiny test should be employed
while assessing the implications of this variety of legislations.
Legislation should not be only assessed on its proposed aims but
rather on the implications and the effects. The impugned
legislation suffers from incurable fixations of stereotype E
morality and conception of sexual role. The perspective
thus arrived at is outmoded in content and stifling in means.
No law in its ultimate effect should end up perpetuating the
oppression of women. Personal freedom is a fundamental tenet
which cannot be compromised in the name of expediency until F
and unless there is a compelling State purpose. Heightened level
of scrutiny is the normative threshold for judicial review in such
cases." (Emphasis supplied by us)
86. Similarly, it was observed by this Court in Satyawati Sharma
v. Union ofIndia" in paragraph 32 of the Report that legislation which G
might be reasonable at the time of its enactment could become
unreasonable with the passage of time. It was observed as follows:

"(1984) 1 sec 222
"(2008) 3 sec 1
"c2008) s sec 287
H
870 SUPREME COURT REPORTS [2017] 13 S.C.R.

A "It is trite to say that legislation which may be quite reasonable
and rational at the time of its enactment may with the lapse
of time and/or due to change of circumstances become
arbitra:ry, unreasonable and violative of the doctrine of
equality and even if the validity of such legislation may have
been npheld at a given point of time, the Court may, in subsequent
B
litigation, strike down the same ifit is found that the rationale of
classification has become non-existent." (Emphasis supplied by
us)
There is therefore no doubt that the impact and effect of Exception 2 to
Section 375 of the IPC has to be considered not with the blinkered vision
C of the days gone by but with the social realities of today. Traditions that
might have been acceptable at some historical point of time are not cast
in stone. If times and situations change, so must views, traditions and
conventions.
87. We have adverted to the wealth of documentary material which
D goes to show that an early marriage and sexual intercourse at an early
age could have detrimental effects on the girl child not only in terms of
her physical and mental health but also in terms of her nutrition, her
education, her employability and her general well-being. To make matters
worse, the detrimental impact could pass on to the children of the girl
child who may be malnourished and may be required to live in an
E
impoverished state due to a variety of factors. An early marriage
therefore could have an inter-generational adverse impact. Jn effect
therefore the practice of early marriage or child marriage even if sanctified
by tradition and custom may yet be an undesirable practice today with
increasing awareness and knowledge of its detrimental effects and the
F detrimental effects of an early pregnancy. Should this traditional practice
still continue? We do not think so and the sooner it is given up, it would
be in the best interest of the girl child and for society as a whole.
88. We must not and cannot forget the existence of Article 21 of
the Constimtion which gives a fundamental right to a girl child to live a
G life of dignity. The documentary material placed before us clearly suggests
that an early marriage takes away the self esteem and confidence of a
girl child and subjects her, in a sense, to sexual abuse. Under no
circumstances can it be said that such a girl child lives a life of dignity.
The right of a girl child to maintain her bodily integrity is effectively
destroyed by a traditional practice sanctified by the IPC. Her husband,
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 871
[MADAN 8. LOKUR, J.]

for the purposes of Section 375 of the IPC, effectively has full control A
over her body and can subject her to sexual intercourse without her
consent or without her willingness since such an activity would not be
rape. Anomalously, although her husband can rape her but he cannot
molest her for if he does so he could be punished under the provisions of
the JPC. This was recognized by the LC! in its l 72nd report but was not
B
commented upon. lt appears therefore that different and irrational
standards have been laid down for the treatment of the girl child by her
husband and it is necessaty to harmonize the provisions of various statutes
and also harmonize different provisions of the !PC inter-se.
89. We have also adverted to the issue of reproductive choices
that are severely curtailed as far as a married girl child is concerned. c
There is every possibility that being subjected to sexual intercourse, the
girl child might become pregnant and would have to deliver a baby even
though her body is not quite ready for procreation. The documentary
material shown to us indicates that there are greater chances of a girl
child dying during childbirth and there are greater chances of neonatal D
deaths. The results adverted to in the material also suggest that children
born out of early marriages are more likely to be malnourished. In the
face of this material, would it be wise to continue with a practice,
traditional though it might be, that puts the life ofa girl child in danger
and also puts the life of the baby of a girl child born from an early
marriage at stake? Apart from constitutional and statutory provisions, E
constitutional morality forbids us from giving an interpretation to Exception
2 to Section 375 of the !PC that sanctifies a tradition or custom that is no
longer sustainable.
90. The view that marital rape of a girl child has the potential of
destroying the institution of marriage cannot be accepted. Marriage is F
not institutional but personal - nothing can destroy the 'institution' of
marriage except a statute that makes marriage illegal and punishable. A
divorce may destroy a marriage but does it have the potential of
destroying the 'institution' of marriage? A judicial separation may dent a
marital relationship but does it have the potential of destroying the G
'institution' of marriage or even the marriage? Can it be said that no
divorce should be permitted or that judicial separation should be
prohibited? The answer is quite obvious.
91. Looked at from another perspective, the PCMA actually makes
child marriages voidable and makes the parties to a child marriage (other H
872 SUPREME COURT REPORTS [2017] l3 S.C.R.

A than the girl child) punishable for an offence under the said Act. For
someone who supports the institution of marriage, nothing could be more
destructive of the institution of marriage than the PCMA which makes a
child marriage voidable and punishable on the one hand and on the other,
it otherwise collaterally legitimizes the pernicious practice of child
marriages. It is doubtful if the Parliamentary Standing Committee intended
B
such a situation along with its attendant adverse and detrimental impacts
and so we leave it at that.
92. Assuming some objective is sought to be achieved by the
artificial distinction, the further question is: what is the rational nexus
between decriminalizing sexual intercourse under the !PC with a married
c girl child and an unclear and uncertain statutory objective? There is no
intelligible answer to this question particularly since sexual intercourse
with a married girl child is a n1minal offence ofaggravated penetrative
sexual assault under the POCSO Act. Therefore, while the husband of
a married girl child might not have committed rape for the purposes of
D the !PC but he would nevertheless have wmmitted aggravated penetrative
sexual assault for the purposes of the POCSO Act. The punishment for
rape (assuming it is committed) and the punishment for penetrative sexual
assault is the same, namely imprisonment for a minimum period of 7
years which may extend to imprisonment for life. Similarly, for an
'aggravated' form of rape the punishment is for a minimum period of l 0
E years imprisonment which may extend to imprisonment for life (under
the !PC) and the punishment for aggravated penetrative sexual assault
(which is what is applicable in the case of a married girl child) is the
same (under the POCSO Act). In other words, the artificial distinction
merely takes the husband of the girl child out of the clutches of the !PC
F while retaining him within the clutches of the POCSO Act. We are unable
to understand why this is so and no valid justification or explanation is
forthcoming from the Union oflndia.
Application of special laws
93. Whatever be the explanation, given the context and purpose
G of their enactment, primacy must be given to pro-child statutes over the
!PC as provided for in Sections 5 and 41 of the !PC. There are several
reasons for this including the absence of any rationale in creating an
artificial distinction, in relation to sexual offences, between a married
girl child and an unmarried girl child. Statutes concerning the rights of
children are special laws concerning a special subject of legislation and
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 873
[MADAN B. LOKUR, J.]

therefore the provisions of such subject-specific legislations must prevail A
and take precedence over the provisions of a general law such as the
!PC. It must also be remembered that the provisions of the JJ Act as
well as the provisions of the POCSO Act are traceable to Article 15(3)
of the Constitution which enables Parliament to make special provisions
for the benefit of children. We have already adverted to some decisions
B
relating to the interpretation of Article 15(3) of the Constitution in a
manner that is affirmative, in favour of children and for children and we
have also adverted to the discussion in the Constituent Assembly in this
regard. There can therefore be no other opinion regarding the pro-child
slant of the JJ Act as well as the POCSO Act.
94. A rather lengthy but useful discussion on this subject of special
c
laws is to be found in Life Insurance Corporation of India v. D.J.
Bahadui'- 7 in paragraphs 52 and 53 of the Report. Briefly, it was held
that the subject-matter and the perspective of the statute are determinative
of the question whether a statute is a general law or a special law.
Therefore, for certain purposes a statute might be a special law but for D
other purposes, as compared to another statute, it might be a general
law. In respect of a dispute between the Life Insurance Corporation and
its workmen qua workmen, the Industrial Disputes Act, 1947 would be a
special law vis-a-vis the Life Insurance Corporation Act, 1956; but, "when
compensation on nationalisation is the question, the LIC Act is the special
statute''. It was held as follows: E

"In determining whether a statute is a special or a general one,
the focus must be on the principal subject-matter plus the particular
perspective. For certain purposes, an Act may be general and for
certain other purposes it may be special and we cannot blur
distinctions when dealing with finer points of law. In law, we have F
a cosmos of relativity, not absolutes - so too in life. The ID Act
is a special statute devoted wholly to investigation and settlement
of industrial disputes which provides definitionally for the nature
of industrial disputes coming within its ambit. It creates an
infrastructure for investigation into, solution of and adjudication G
upon industrial disputes. It also provides the necessary machinery
for enforcement of awards and settlements. From alpha to omega
the ID Act has one special mission - the resolution of industrial
disputes through specialised agencies according to specialised
"(1981) I SCC315
H
874 SUPREME COURT REPORTS [2017] 13 S.C.R.

A procedures and with special reference to the weaker categories
of emplo)'ees coming within the definition of workmen. Therefore,
with reference to industrial disputes between employers and
workmen, the ID Act is a special statute, and the LIC Act does
not speak at all with specific reference to workmen. On the other
hand, its powers relate to the general aspects of nationalisation,
B
of management when private businesses are nationalised and a
plurality qf problems which, incidentally, involve transfer of service
of existiqg employees of insurers. The workmen qua workmen
and industrial disputes between workmen and the employer as
such, are beyond the orbit ofand have no specific or special place
c in the scheme of the LIC Act. And whenever there was a dispute
between workmen and management the ID Act mechanism was
resorted to.
What are we confronted with in the present case, so that I may
determine as between the two enactments which is the special?
D The only subject which has led to this litigation and which is the
bone of contention between the parties is an industrial dispute
between the Corporation and its workmen qua workmen. If
we refuse to be obfuscated by legal abracadabra and see plainly
what is so obvious, the conclusion that flows, in the wake of the
study I h~ve made, is that vis-a-vis "industrial disputes" at the
E terminatibn of the settlement as between the workmen and the
Corporation, the ID Act is a special legislation and the LIC Act a
general legislation. Likewise, when compensation on nationalisation
is the question, the LIC Act is the special statute. An application
of the generalia maxim as expounded by English textbooks and
F decisions leaves us in no doubt that the ID Act being special law,
prevails over the LIC Act which is but general law."
The scope and amplitude of the two significant pro-child statutes may
now be examined in light of the law laid down by this Court including
Sections 5 and 41 of the !PC.
G (i) The JJ Act
95. A cursory reading of the JJ Act gives a clear indication that a
girl child who is in imminent risk of marriage before attaining the age of
18 years ofage is a child in need of care and protection (Section 2 (14)
(xii) of the JJ Act). In our opinion, it cannot be said with any degree of
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 875
[MADAN B. LOKUR, J.]

rationality that such a girl child loses her status as a child in need of care A
and protection soon after she gets married. The JJ Act provides that
efforts must be made to ensure the care, protection, appropriate
rehabilitation or restoration of a girl child who is at imminent risk of
marriage and therefore a child in need of care and protection. If this
provision is ignored or given a go by, it would put the girl child in a worse
B
off situation because after marriage she could be subjected to aggravated
penetrative sexual assault for which she might not be physically, mentally
or psychologically ready. The intention of the JJ Act is to benefit a child
rather than place her in difficult circumstances. A contrary view would
not only destroy the purpose and spirit of the JJ Act but would also take
away the importance of Article 15(3) of the Constitution. Surely, such c
an interpretation and understanding cannot be given to the provisions of
the JJ Act.
(ii) The POCSO Act
96. Similarly, the provisions of the POCSO Act make it quite explicit
that the dignity and rights of a child below 18 years of age must be D
recognized and respected. For this purpose, special provisions have been
made in the POCSO Act as for example Section 28 thereof which
provides for the establishment of a Special Court to try offences under
the Act. Section 29 of the POCSO Act provides that where a person is
prosecuted for committing or abetting or attempting to commit an offence E
under Section 3 (penetrative sexual assault) or under Section 5 (aggravated
penetrative sexual assault) then the Special Court shall presume that
such a person has committed or abetted or attempted to commit the
offence unless the contrary is proved. Similarly, the procedure and powers
of a Special Court have been delineated in Section 33 of the POCSO
Act and this section provides for not only a child friendly atmosphere in F
the Special Court but also child friendly procedures, some of which are
given in subsequent sections of the statute. Once again the legislative
slant is in favour of a child thereby giving substantive meaning to Article
15(3) of the Constitution.
97. However, of much greater importance and significance is G
Section 42-A of the POCSO Act. This section provides that the provisions
of the POCSO Act are in addition to and not in derogation of the provisions
of any other law in force which includes the !PC. Moreover, the section
provides that in the event of any inconsistency between the provisions
of the POCSO Act and any other law, the provisions of the POCSO Act
H
876 SUPREME COURT REPORTS [2017] 13 S.C.R.

A shall have overriding effect. It follows from this that even though the
!PC decriminalizes the marital rape ofa girl child, the husband of the girl
child would nevertheless be liable for punishment under the provisions
of the POCSO Act for aggravated penetrative sexual assault.
98. Prima facie it might appear that since rape is an offence
B under the !PC (subject to Exception 2 to Section 375) while penetrative
sexual assault or aggravated penetrative sexual assault is an offence
under the POCSO Act and both are distinct and separate statutes,
therefore there is no inconsistency between the provisions of the !PC
and the provislons of the POCSO Act. However the fact is that there
is no real distinction between the definition of rape under the !PC and
c the definition of penetrative sexual assault under the POCSO Act. There
is also no real distinction between the rape of a married girl child and
aggravated penetrative sexual assault punishable under Section 6 of the
POCSO Act. Additionally, the punishment for the respective offences is
the same, except that the marital rape of a girl child between l 5 and 18
D years of age is not rape in view of Exception 2 to Section 375 of the
!PC. In sum, marital rape of a girl child is effectively nothing but
aggravated penetrative sexual assault and there is no reason why it should
not be punishable under the provisions of the !PC. Therefore, it does
appear that only a notional or linguistic distinction is sought to be made
between rape and penetrative sexual assault and rape of a married girl
E child and aggravated penetrative sexual assault. There is no rationale
for this distinction and it is nothing but a completely arbitrary and
discriminatory distinction.
Harmonious and purposive interpretation
99. The entire issue of the interpretation of the JJ Act, the POCSO
F Act, the PCMA and Exception 2 to Section 375 of the !PC can be
looked at from yet another perspective, the perspective of purposive
and harmonious construction of statutes relating to the same subject
matter. Long ago, it was said by Lord Denning that when a defect
appears, a judge cannot fold his hands and blame the draftsman but
G must also consider the social conditions and give force and life to the
intention of the Legislature. It was said in Seaford Court Estates Ltd.
v. Asher'' that:
"A judge, believing himself to be fettered by the supposed rule
that he must look to the language and nothing else, laments that
H '" [ 1949] 2 K.B. 481 affirmed in [ 1950] A. C. 508
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 877
[MADAN B. LOKUR, J.]

the draftsmen have not provided for this or that, or have been A
guilty of some or other ambiguity. It would certainly save the judges
trouble if Acts of Parliament were drafted with divine prescience
and perfect clarity. In the absence of it, when a defect appears a
judge cannot simply fold his hands and blame the draftsman. He
must set to work on the constructive task of finding the intention B
of Parliament, and he must do this not only from the language of
the statute, but also from a consideration of the social conditions
which gave rise to it, and of the mischief which it was passed to
remedy, and then he must supplement the written word so as to
give "force and life" to the intention of the legislature."
100. Similarly, in Collector of Customs v. Digvijaya Singhji C
Spinning & Weaving Mills" it was said that where an alternative
construction is open, that alternative should be chosen which is consistent
with the smooth working of the system which the statute purports to
regulate. It was said that:
"It is one of the well-established Rules of construction that "if the D
words ofa statute are in themselves precise and unambiguous no
more is necessary than to expound those words in their natural
and ordinary sense, the words themselves in such case best
declaring the intention of the legislature". It is equally well-settled
principle of construction that "Where alternative constructions are E
equally open that alternative is to be chosen which will be
consistentwith the smooth working of the system which the statute
purports to be regulating; and that alternative is to be rejected
which will introduce uncertainty, friction or confusion into the
working of the system"."
F
I 01. That a constructive attitude should be adopted in interpreting
statutes was endorsed in Jugal Kishore v. State of Maharashtra 30
when it was said that:
" ..... Unless the Acts [Maharashtra Agricultural Land (Ceiling
on Holdings) Act, 1961 and the Bombay Tenancy and Agricultural G
Lands (Vidarbha Region) Act, 1958], with the intention of
implementing various socio-economic plans, are read in such
complementary manner, the operation of the different Acts in the

"AIR 1961SC1549
"1989 Supp (I) sec 589 H
878 SUPREME COURT REPORTS (2017] 13 S.C.R.

A same field would create contradiction and would become
impossible. It is, therefore, necessary to take a constructive attitude
in interpreting provisions of these types and determine the main
aim of the particular Act in question for adjudication before the
court."

B I 02. Finally, from the purposive and harmonious construction point
of view as well as the social context point of view, we may only draw
attention to the opinion expressed by the Constitution Bench in Abhiram
Singh"· C.D. Commachen" by one of us (Lokur, J) to supplement our
view. It is not necessary to repeat the observations made and conclusions
given therein.
c
103. Viewed from any perspective, there seems to be no reason
to arbitrarily discriminate against a girl child who is married between 15
and 18 years of age. On the contrary, there is every reason to give a
harmonious and purposive construction to the pro-child statutes to
preserve and pmtect the human rights of the married girl child.
D
Implementation of laws
104. The Preamble to our Constitution brings out our commitment
to social justice, but unfortunately, this petition clearly brings out that
social justice laws are not implemented in the spirit in which they are
E enacted by Parliament. Young girls are married in thousands in the country,
and as Section 13 of the PCMA indicates, there is an auspicious day -
Akshaya Trutiya - when mass child marriages are performed. Such
young girls are subjected to sexual intercourse regardless of their health,
their ability to bear children and other adverse social, economic and
psychological consequences. Civil society can do just so much for
F preventing such child marriages but eventually it is for the Government
of India and the State Governments to take proactive steps to prevent
child marriages so that young girls in our country can aspire to a better
and healthier life. We hope the State realizes and appreciates this.
Conclusion
G
105. On a complete assessment of the law and the documentary
material, it appears that there are really five options before us: (i) To let
the incongruity remain as it is - this does not seem a viable option to us,
given that the lives of thousands of young girls are at stake; (ii) To strike

" (2011) 2 sec 629
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 879

down as unconstitutional Exception 2 to Section 375 of the !PC- in the A
present case this is also not a viable option since this relief was given up
and no such issue was raised; (iii) To reduce the age of consent from I 8
years to 15 years- this too is not a viable option and would ultimately be
for Parliament to decide; (iv) To bring the POCSO Act in consonance
with Exception 2 to Section 375 of the !PC - this is also not a viable
B
option since it would require not only a retrograde amendment to the
POCSO Act but also to several other pro-child statutes; (v) To read
Exception 2 to Section 375 of the IPC in a purposive manner to make it
in consonance with the POCSO Act, the spirit of other pro-child
legislations and the human rights of a married girl child. Being purposive
and harmonious constructionists, we are of opinion that this is the only c
pragmatic option available. Therefore, we are left with absolutely no
other option but to harmonize the system oflaws relating to children and
require Exception 2 to Section 375 of the IPC to now be meaningfully
read as: "Sexual intercourse or sexual acts by a man with his own wife,
the wife not being under eighteen years of age, is not rape." It is only
D
through this reading that the intent of social justice to the married girl
child and the constitutional vision of the framers of our Constitution can
be preserved and protected and perhaps given impetus.
106. We make it clear that we have not at all dealt with the larger
issue of marital rape of adult women since that issue was not raised
before us by the petitioner or the intervener. E

107. We express our gratitude to Mr. Gaurav Agrawal, Advocate
and Ms. Jayna Kothari, Advocate for the effort that they have put in and
the able assistance that they have given us for the purpose of deciding
this case.
F
DEEPAK GUPTA, J. 1. I have gone through the extremely
erudite and well written judgment of my learned brother Lokur, J .. I fully
agree with both the reasoning given by him and the conclusions arrived
at. However, I am expressing my own views in this separate concurring
judgment wherein I have given some other reasons while reaching the
same conclusion. G
2. "Whether Exception 2 to Section 375 of the Indian Penal Code,
in so far as it relates to girls aged 15 to 18 years, is unconstitutional and
liable to be struck down" is the question for consideration in this writ
petition.
H
880 SUPREME COURT REPORTS [2017] l3 S.C.R.

A 3. At the outset, it may be mentioned that in the main petition the
challenge is laid to the entire Exception 2. However, during the course
of arguments Mr. Gaurav Agarwal, learned counsel for the petitioner,
Independent Thought, a registered Society and Ms. Jayna Kothari, learned
counsel for the intervener, the Child Rights Group, submitted that they
are limiting their challenge to Exception 2 only in so far as it deals with
B
the girl child aged 15 to 18 years.
4. Section 375 of the Indian Penal !PC (for short '!PC') defines
rape and reads as follows:
"375. Rape.- A man is said to commit "rape" if he-
c a. penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him
or any other person; or
b. inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman
D or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body
of such woman or makes her to do so with him or any other
person; or
E
d. applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person,
under the circumstances falling under any of the following seven
descriptions:-
F First-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained
by putting her or any person in whom she is interested, in fear of
death or of hurt.
G
Fourthly.-With her consent, when the man knows that he is not
her husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 881
[DEEPAK GUPTA, J.]

Fifthly.-With her consent when, at the time of giving such consent, A
by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under eighteen B
years of age.
Seventhly. -When she is unable to communicate consent.
Explanation !.-For the purposes of this section, "vagina" shall
also include labia majora.
c
Explanation 2.-Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act D
of penetration shall not by the reason only of that fact, be regarded
as consenting to the sexual activity.
Exception 1.-A medical procedure or intervention shall not
constitute rape.
Exception 2.-Sexual intercourse or sexual acts by a man with E
his own wife, the wife not being under fifteen years of age, is not
rape."

5. A husband who commits rape on his wife, as defined under
Section 375 of the !PC, cannot be charged with the said offence as long
as the wife is over 15 years of age. It may be made clear that this Court F
is not going into the issue of"marital rape" of women aged 18 years and
above and the discussion is limited only to "wives" aged 15 to 18 years.
A man is guilty ofrape ifhe commits any act mentioned in Section 375
IPC, without the consent of the women if she is above 18 years of age.
Ifa man commits any of the acts mentioned in Section 375 IPC, with a
girl aged less than 18 years, then the act will amount to rape even if done G
with the consent of the victim. However, as per Exception 2 of Section
375 IPC, ifthe man is married to the woman and ifthe "wife" is aged
more than 15 years then the man cannot be held guilty of commission of
the offence defined under Section 375, whether the wife consented to
the sexual act or not. H
882 SUJ?REME COURT REPORTS [2017] 13 S.C.R.

A 6. Section 375 of the !PC creates three classes of victims:
(i) The first class of victims are girls aged less than 18 years.
In those cases, if the acts contemplated under Section 375
!PC are committed with or without consent of the victim, the
man committing such an act is guilty of rape.
B (ii) The second class of victims are women aged 18 years or
above. Such women can consent to having consensual sex.
If the sexual act is done with the consent of the woman,
unless the consent is obtained in circumstances falling under
clauses thirdly, fourthly and fifthly of Section 375 !PC no
c offence is committed. The man can be held guilty of rape,
only if the sexual act is done in absence of legal and valid
consent.
(iii) The third category of victims is married women. The
exception exempts a man from being charged and convicted
D under Section 375 !PC for any of the acts contemplated under
this section ifthe victim is his "wife" aged IS years and above.
To put it differently, under Section 37S !PC a man cannot even
have consensual sex with a girl if she is below the age of 18 years and
the girl is by law deemed unable to give her consent. However, if the
E girl child is rparried and she is aged above IS years, then such consent is
presumed and there is no offence ifthe husband has sex with his "wife",
who is above 15 years of age. If the "wife" is below 15 then the
husband would be guilty of such an offence.
7. The issue is whether a girl below 18 years who is otherwise
unable to give consent can be presumed to have consented to have sex
F
with her husband for all times to come and whether such presumption in
the case of a girl child is unconscionable and violative of Articles 14, 16
and 21 of the Constitution of India.
THE LEGISLATIVE BACKGROUND
G 8. The !PC was enacted in the year 1860 and the age given in
Exception 2 of Section 375 has been changed from time to time. Till
1929, no minimum age of marriage was legally fixed. It was only after
passing of the Child Marriage Restraint Act, 1929 (for short 'the Restraint
Act') that the minimum age for marriage was fixed. The Restraint Act

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 883
[DEEPAK GUPTA, J.]

was repealed by the Prohibition of Child Marriage Act, 2006 (for short A
'the PCMA'). A chart showing the ages of consent, from time to time,
under clause Sixthly of Section 375 !PC, in Exception 2 to Section 375
!PC and the Restraint Act/PCMA is as follows:

Year !PC Age of Age under Minimum B
Consent Exception 2 Age of
under Section to Sec. 375 Marriage
375 6'" l.P.C under the
'
Clause l.P.C Restraint
Act/PCMA
1860 - 10 Years 10 Years - c
1891 Act 10 of 12 Years 12 Years -
1891 (After
the
Amendment
of!PC) D
1925 (After the 14 Years 13 Years -
Amendment
of!PC)
1929 (After 14 Years 13 Years 14 Years
Passing of
E
Child
Marriage
Restraint
Act)
1940 After the 16 Years 15 Years 15 Years
Amendment F
of the l.P.C
and Child
Marriage Act
1978 - 16 Years 15 Years 18 Years

2013 - 18 Years 15 Years 18 Years G

9. A perusal of the aforementioned chart clearly shows that when
the !PC was originally enacted in the year 1860, the age of consent
under clause Sixthly of Section 375 IPC and under Exception 2 of Section
H
884 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 375 !PC was 10 years. In this regard, the !PC was amended in 1891
and the age under both the provisions was raised to 12 years. In 1925,
theage of consent was raised under clause Sixthly to 14 years but under
the Exception 2 the age was retained at 13 years. In 1929, the Child
Marriage Restraint Act was enacted. Section 3 of this Act provided
that the minim11mage of the girl child, to be eligible for marriage, was 14
B
years. In 1940, the !PC was again amended and the age of consent
under clause Sixthly was raised to 16 years, but under Exception 2 to
Section 375 IPC, the age was raised to 15 years and the minimum age
of marriage under the Restraint Act was also 15 years. In 1978, the
!PC was again amended and the age of consent was raised to 16 years
c but under Exception 2 to Section 375 !PC, no change was made. In
1978, the minimum age for marriage of the girl child was raised to 18
years but no consequential amendment was made in the IPC. In 2013,
after the unfortunate ·'Nirbhaya" incident took place, the Parliament
raised the age ofconsent under clause Sixthly to 18 years. The minimum
age for marriage of a girl child remained at 18 years, but no change was
D
made in Exception 2 to Section 375 !PC and a girl child who was married
before the minimum age of marriage, could be subjected to sexual
intercourse (forcible or otherwise) by her husband and if she was over
15 years of age, the husband could not be charged with any offence.
I 0. At this stage, reference may be made to the Hindu Marriage
E Act. In the Hindu Marriage Act, as originally enacted in 1955, the
minimum age for marriage of a bride was 15 years and of a groom 18
years. The Hindu Marriage Act was amended in 1978 and the minimum
age of marriage for a bride was enhanced to 18 years and for a groom
to 21 years. Identical amendment was made in the Restraint Act.
F. 11. The Child Marriage Restraint Act, 1929 was repealed by the
Prohibition of Child Marriage Act, 2006 and this Act defines a child as
follows:
"2. Definitions.-In this Act, unless the context otherwise
requ1res,-
G (a) "child" means a person who, if a male, has not completed
twenty-one years of age, and if a female, has not completed
eighteen years of age."
12. Section 3 of the PCMA makes child marriages voidable at the
option of the contracting party who is a child and reads as follows:
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 885
[DEEPAK GUPTA, J.]

"3. Child marriages to be voidable at the option of A
contracting party being a child.~( 1) Every child marriage,
whether solemnised before or after the commencement of this
Act, shall be voidable at the option of the contracting party who
· was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree B
of nullity may be filed in the district court only by a contracting
party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the
petition may be filed through his or her guardian or next friend
alongwith the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but
c
before the child filing the petition completes two years of attaining
majority.
(4) While granting a decree of nullity under this section, the district
court shall make an order directing both the parties to the marriage
D
and their parents or their guardians to return to the other party, his
or her parents or guardian, as the case may be, the money,
valuables, ornaments and other gifts received on the occasion of
the marriage by them from the other side, or an amount equal to
the value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless E
the concerned parties have been given notices to appear before
the district court and show cause why such order should not be
passed."
13. It would be pertinent to note that under the Restraint Act the
punishment under Section 3 for a male aged 18 years to 21 years, F
contracting a child marriage was simple imprisonment, which could extend
up to 15 days or with fine up to Rs.1000/-or both and under Section4, if
a male over 21 years contracted a marriage with a female child, the
punishment was simple imprisonment which could extend up to 3 months.
Section 5 provided punishment of simple imprisonment up to 3 months G
and fine with regard to those who performed, conducted or directed any
child marriage. Similar provisions existed in Section 6 with regard to the
punishment of parents or guardians, who acted to promote child marriage
or permitted it to be solemnized or negligently failed to prevent the child
marriage to be solemnized. Surprisingly, the proviso to Section 6 provided
H
886 SUPREME COURT REPORTS [2017] 13 S.C.R.

A that no women could be punished with imprisonment. The punishments
provided under the Restraint Act were virtually illusory and no minimwn
punishment was prescribed.
14. The Restraint Act was repealed and replaced by the PCMA.
The provisions of the PCMA are slightly more stringent. Under Section
B 9 of the PCMA, if a male adult above 18 years of age contracts a child
marriage, he can be sentenced to rigorous imprisonment up to 2 years or
fine which may extend up to one lakh rupees or both. However, no
minimum sentence is provided even under this Act. Section 10 of the
PCMA provides punishment for those persons who perform, conduct,
direct or abet a child marriage and the same sentence is provided. As
c far as the guardians and parents are concerned, the punishment for them
is provided under Section 11 and it is the same. Again, the proviso lays
down that no woman shall be punishable with imprisonment. Though
this Court is not dealing with this question directly in the present petition,
it is obvious that a woman would be placed in the forefront by any person
D who gets a child marriage conducted. Such a woman cannot be sentenced
to undergo imprisonment and at the most, a fine can be levied. The
punishments provided are neither sufficiently punitive nor deterrent.
Therefore, the PCMA has been breached with impunity. I think the
time has come when this Act needs serious reconsideration, especially
in view of the harsh reality that a lot of child trafficking is taking place
E under the garb of marriage including child marriage. More stringent
punishments should be provided and some minimum punishment should
definitely be provided especially to those mature adults who promote
such marriages and who perform, conduct, direct or abet any such
marriage. Otherwise, this legislation will never act as a sufficient deterrent
F to prevent or even reduce child marriages.
15. Under Section 2(k) of the Juvenile Justice (Care and Protection
of Children) Act, 2000, a "juvenile" or "child" was defined to mean a
person, who had not completed 18 years of age. The Juvenile Justice
(Care and Protection of Children) Act, 2015 defines a child under section
G 2(12) to mean a person who has not completed 18 years of age.
16. Under the Protection of Women from Domestic Violence Act,
2005, a child has been defined under Section 2(b) to mean any person
below the age of 18 years.

H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 887
[DEEPAK GUPTA, J.]

17. Section 2(vii) of the Dissolution of Muslim Marriages Act, A
1939 entitles a women married under Muslim law to obtain a decree of
dissolution of marriage if she is given in marriage by her father or other
guardian before she attained the age of 15 years and she repudiates the
marriage before attaining the age of 18 years provided that the marriage
has not been consummated. This provision deals with girls below the
B
age of 15 years who are got married. Such a girl is required to repudiate
her marriage before she attains majority and she can only repudiate the
marriage ifthe marriage has not been consummated. This virtually makes
mockery of the PCMA. Therefore, even in a marriage which is void
under PCMA, the girl will have to obtain a decree for dissolution of her
marriage, that too before she attains the age of majority and only ifthe c
marriage has not been consummated. Another anomalous situation is
that if the husband has forcible sex with such a girl, the marriag~ is
consummated and the girl child is deprived of her right to get the marriage
annulled.
18. Similarly under Section l 3(2)(iv) ofthe Hindu Marriage Act, D
1955, a Hindu girl can file a petition for divorce on the ground that her
marriage, whether consummated or not, was solemnized before she
attained the age of 15 years and she has repudiated her marriage after
attaining the age of 15 years but before attaining the age of 18 years.
This is also not in consonance with the provisions of PCMA, according
to which marriage ofa child bride below the age of 15 years is void and E
there is no question of seeking a divorce. A void marriage is no man"iage.
Another anomaly is that whereas a child bride, who is above 15 years
under PCMA, can apply for annulment of marriage up to the age of20
years, under Section l3(2)(iv) of the Hindu Marriage Act, a child bride
m1der the age of 15 years must repudiate the matTiage after attaining F
the age of 15 years but before she attains the age of 18 years, i.e. even
before she attains majority. The question that remains unanswered is
who will represent or help this child, who has been forced to marry to
approach the Courts.
19. lt is obvious that while making amendments to various laws, G
some laws are forgotten and consequential amendments are not made
in those laws. After the PCMA was enacted both the Hindu Marriage
Act, 1955 and the Dissolution of Muslim Marriages and Divorce Act,
1939 also should have been suitably amended, but this has not been

H
888 SUPREME COURT REPORTS [2017] 13 S.C.R.

A done. In my opinion, the PCMA is a secular Act applicable to all. It
being a special Act dealing with children, the provisions of this Act will
prevail over the provisions of both the Hindu Marriage Act and the Muslim
Marriages and Divorce Act, in so far as children are concerned.
20. Section 3 of the Majority Act, 1875 provides that a person
B shall attain the age of majority on completing the age of 18 years and not
before. It would, however, be pertinent to mention that Section 2 of the
Indian Majority Act contains anon--0bstante clause excluding laws relating
to marriage, divorce, dower and adoption from the provisions of that
Act. Under $ection 4(i) of the Guardians and Wards Act, 1890 a minor
has been defined to mean a person, who has not attained majority under
c the Majority Act. Under Section 4(a) of the Hindu Minority and
Guardianship Act, 1956 a minor has been defined to mean a person who
has not completed the age of 18 years. Under the Representation of
the People Act, 1951 a person is entitled to vote only after he attains the
age of 18 years.
D 21. Under the provisions of the aforesaid Acts a person, who is a
minor and not a major, is not entitled to deal with his property. The
property of such a minor can be sold or transferred only if such sale or
transfer is for the benefit of the minor and after the permission of the
court. Section 11 of the Indian Contract Act, 1872 provides that only a
E person who has attained the age of majority and is of a sound mind is
competent to enter into a contract. A contract entered into by a minor is
treated to be a void contract.
22. Keeping in view the mounting crimes against children,
regardless of the sex of the victim, Parliament enacted the Protection of
F Children from Sexual Offences Act, 2012 (for short 'POCSO'), which
came into force on 14.11.2012. The Statement of Objects and Reasons
of this Act reads as follows:
"STATEMENT OF OBJECTS AND REASONS 1. Article
15 of the Constitution, inter a/ia, confers upon the State powers
to make special provision for children. Further, article 39, inter
G
a/ia, provides that the State shall in particular direct its policy
towards securing that the tender age of children are not abused
and their childhood and youth are protected against exploitation
and they are given facilities to develop in a healthy manner and in
conditions of freedom and dignity.
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 889
[DEEPAK GUPTA, J.)

2. The United Nations Convention on the Rights of Children, A
ratified by India on 11th December, 1992, requires the State Parties
to undertake all appropriate national, bilateral and multilateral
measures to prevent (a) the inducement or coercion of a child to
engage in any unlawful sexual activity; (b) the exploitative use of
children in prostitution or other unlawful sexual practices; and (c)
B
the exploitative use of children in pornographic performances and
materials.
3. The data collected by the National Crime Records Bureau shows
that there has been increase in cases of sexual offences against
children. This is corroborated by the 'Study on Child Abuse: India C
2007' conducted by the Ministry of Women and Child
Development. Moreover, sexual offences against children are not
adequately addressed by the existing laws. A large number of
such offences are neither specifically provided for nor are they
adequately penalised. The interests of the child, both as a victim
as well as a witness, need to be protected. It is felt that offences D
against children need to be defined explicitly and countered through
commensurate penalties as an effective deterrence.
4. lt is, therefore, proposed to enact a self contained comprehensive
legislation inter alia to provide for protection of children from the
offences of sexual assault, sexual harassment and pornography E
with due regard for safeguarding the interest and well being of
the child at every stage of the judicial process, incorporating child-
friendly procedures for reporting, recording of evidence,
investigation and trial of offences and provision for establishment
of Special Courts for speedy trial of such offences.
F
5. The Bill would contribute to enforcement of the right of all
children to safety, security and protection from sexual abuse and
exploitation."
23. POCSO is a landmark legislation for protection of child rights
and to prevent the sexual abuse and exploitation of children. This Act G
deals with sexual offences committed against a child and a child has
been defined to be a person below the age of 18 years under Section
2(d). POCSO does not define rape, but it defines penetrative sexual
assault under Section 3 and aggravated penetrative sexual assault under
Section 5 and the punishments are provided for them under Section 4
H
890 SUPREME COURT REPORTS [2017] 13 S.C.R.

A and 6 respectively. Section 7 of the POCSO defines sexual assault,
Section 9 defines aggravated sexual assault and punishments for those
offences are provided under Section 8 and l 0 respectively. Section I l
defines sexual harassment and Section l 2 provides the punishment for
sexual harassment. Chapter III of the POCSO deals with use of children
for pornographic purposes with which we are not concerned in the instant
B
case. This Act creates Special Courts to deal with offences against
children. Section 42 of the POCSO is very important for our purpose
and it provides that where an offence is punishable both under POCSO
and under IPC, then the offender found guilty would be liable for that
punishment, which is more severe.
c 24. Section 42 and Section 42A of the POCSO read as follows:
"42. Alternate punishment. - Where an act or omission
constitutes an offence punishable under this Act and also under
sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376,
376A, 376C, 3760, 376E or section 509 of the Indian Penal Code
0 (45of1860), then, notwithstanding anything contained in any law
for the time being in force, the offender found guilty of such
offence shall be liable to punishment under this Act or under the
Indian Penal Code as provides for punishment which is greater in
degree."
E "42A. Act not in derogation of any other law. - The provisions
of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force and, in case
of any inconsistency, the provisions of this Act shall have overriding
effect on the provisions of any such law to the extent of the
F inconsistency."
25. Section 42A provides that the provisions of POCSO shall be
in addition to and not in derogation of the provisions of any other Act.
Therefore, the legislature, in its wisdom, thought that POCSO would
supplant and would be in addition to the other criminal provisions and
G where there was any inconsistency, the provisions of POCSO would
override any other law to the extent of inconsistency.
26. Another important provision to which reference may be made
is Section 198(6) of the Code of Criminal Procedure (for short 'the
Code'). The same reads as follows:
H
.,INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 891
[DEEPAK GUPTA, J.)

"198. Prosecution for offences against marriage: A
xxx xxx xxx
(6) No Court shall take cognizance of an offence under section
376 of the Indian Penal Code (45of1860), where such offence
consists of sexual inter-course by a man with his own wife, the
wife being under eighteen years of age, if more than one year has B
elapsed from the date of the commission of the offence."
The age "eighteen" was substituted for "fifteen" by Act 5 of2009
w.e.f. 31.12.2009. A perusal of the aforesaid provision also makes it
clear that a complaint with regard to commission of offence under Section
375 IPC punishable under Section 376 IPC can be taken cognizance of C
by a court within one year of the commission of the offence even where
"the wife" is below 18 years of age. It is, therefore, apparent that while
amending Section 198 of the Code, the legislature was visualising that
there can be marital rape with a "wife" aged less than 18 years but was
prescribing a limitation of one year, for taking cognizance of such an D
offence. However, no consequential amendment was made to Exception
2 of Section 375 IPC.
WHO IS A CHILD?
27. If one analyses the provisions of all the laws which have been
referred to above, it is apparent that the legislature, in its wisdom, has E
universally enacted that a person below the age of 18 years is deemed
to be a child unable to look after his or her own interests. It would be
very important to note that, in 2013 the IPC was amended, post the
unfortunate "Nirbhaya" incident and the age of consent under clause
Sixthly of Section 375 IPC was increased to 18 years. The position as
F
on date is that under the Protection of Children from Sexual Offences
Act, 2012, Juvenile Justice (Care and Protection of Children) Act, Child
Marriage Restraint Act, 1929, Protection of Women from Domestic
Violence Act, 2005, The Majority Act, 1875, The Guardians and Wards
Act, 1890, The Indian Contract Act, 1872 and many other legislations, a
person below the age of 18 years is considered to be a child unable to G
look after his or her own interests.
28. As far as marriage laws are concerned, as far back as 1978,
the minimum age of marriage of a girl child was increased to 18 years.
The Restraint Act, was replaced by the PCMA wherein also marriage
H
892 SUPREME COURT REPORTS [2017] 13 S.C.R.

A of a girl child aged below 18 years is prohibited. However, Section 3 of
the PCMA makes a child marriage voidable at the option of that party,
who was a child at the time of marriage. The petition for annulling the
child marriage must be filed within 2 years of the child attaining majority.
Therefore, a girl who was married before she attained the age of 18
years, can get her marriage annulled before she attains the age of 20
B
years. Similarly, a male child can get the marriage annulled before
attaining the ag¢ of 23 years. Even when the child is minor, a petition
for annulment can be filed by the guardian or next friend of the child
along with the Child Marriage Prohibition Officer. Unfortunately, both
the number of prosecutions and the number of cases for annulment of
c marriage filed under PCMA are abysmally low.
THE ILL EFFECTS OF A CHILD MARRIAGE
29. A lot of material has been placed before us both by Mr. Gaurav
Agarwal, learned counsel appearing for the petitioner and Ms. Jayna
Kothari, learned Counsel appearing for the Intervener, to indicate that
D child marriage is not in the interest of the girl child. In my opinion, it is
not necessary to refer to all the material cited by learned counsel. The
fact that child marriage is a reprehensible practice; that it is an abhorrent
practice; that it violates the human rights of a child, cannot be seriously
disputed. I am not oblivious to the harsh reality that most of the child
brides are even below the age of 15 years. There is a practice in many
E parts of the country where children, both girls and boys, are married off,
even before they attain puberty. They are innocent children, who do
not even understand what marriage is. The practice which is widely
prevalent is that a girl who is married pre-puberty is normally kept at her
parents' home and is sent to her matrimonial home after she attains
F puberty in a ceremony which is commonly referred to as 'gauna'.
Can the marriage ofa child aged 3-4 years, by any stretch of imagination,
be called a legal and valid marriage?
30. A Child marriage will invariably lead to early child birth and
this will adversely affect the health of the girl child. In a report by the
G UNICEF', there is an article on ending child marriage and the ill effects
of child marriage have been set out thus:-
"Married girls are among the world's most vulnerable people.
When their education is cut short, girls lose the chance to gain the
'Report of UNICEF "ON THE STATE OF THE WORLD'S CHILDREN 2016".
H A fair chance for girls - End Child Marriage by Angelique Kidjo
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 893
[DEEPAK GUPTA, J.]

skills and knowledge to secure a good job and provide for A
themselves and their families. They are socially isolated. As I
observed among my former schoolmates who were forced to get
married, the consciousness of their isolation is in itself painful.
Subordinate to their husbands and families, married girls are more
vulnerable to domestic violence, and not in a position to make B
decisions about safe sex and family planning - which puts them
at high risk of sexually transmitted infections, including HIV, and
of pregnancy and childbearing before their bodies are fully mature.
Already risky pregnancies become even riskier, as married girls
are less likely to get adequate medical care. During delivery,
mothers who are still children are at higher risk of potentially c
disabling complications, like obstetric fistula, and both they and
their babies are more likely to die."
31. In a study conducted on child marriages in India, based on the
census of 2011 ', it was found that 3% girls in the age group of 10 to 14
years were got married and about 20% girls were married before D
attaining the age of 19 years. Unfortunately, this report deals with girls
below the age of 19 years and not 18 years, but the report does indicate
that more than 20% girls in this country are married before attaining the
age of 18 years. Therefore, more than one out of every 5 marriages
violates the provisions of the PCMAand the Hindu Marriage Act, 1955. E
32. The World Health Organisation, in a Report' dealing with the
issue of child brides found that though 11 % of the births worldwide are
amongst adolescents, they account for 23% of the overall burden of
diseases. Therefore, a child bride is more than doubly prone to health
problems than a grown up woman. F
33. In the Report of the Convention on the Rights of the Child',
certain recommendations have been made and the relevant portion of
the Report is as follows:-

' A Statistical analysis of CHILD MARRIAGE IN INDIA, Based on Census 2011 G
published by Young Lives and National Conunission for Protection of Child Rights
(NCPCR)
3
World Health Organisation Report on "Early Marriages, Adolescent and Young Preg-
nancies", Sixty-Fifth World Health Assembly dated 16th March, 2012.
• Report of the United Nations Committee on the Rights of the Child (CRC) on the
Convention of the Rights of the Child, dated 13th June, 2014, dealing with India
H
894 SUPREME COURT REPORTS [2017] 13 S.C.R.

A "Harmful Practices
51. The Committee is deeply concerned at the high prevalence of
child maniages in the State party, despite the enactment of the
Prohibition of Child Marriage Act (PCMA, 2006). It is further
concerned at barriers impeding the full implementation of the
B P'CMA, $uch as the prevalence of social norms and traditions
over the legal framework, the existence of different Personal
Status Laws establishing their own minimum age of marriage
applicable to their respective religious community as well as the
lack of awareness about the PCMA by enforcement officers. It
is also concerned about the prevalence of other harmful practices
c against girls such as dowry and devadasi.
52. The Committee urges the State party to ensure the effective
implementation of the Prohibition of Child Marriage Act (PCMA,
2006), including by clarifying that the PCMA supersede the
different religious-based Personal Status Laws. It also
D recommends that the State party take the necessary measures to
combat dowry, child marriage and devadasi including by conducting
awareness-raising programmes and campaigns with a view to
changing attitudes, as well as counselling and reproductive
education, to prevent and combat child marriages, which are
E harmful to the health and well-being of girls."
34. The General Assembly of United Nations adopted a
Resolution', relevant portion of which, reads as follows:
"Expressing concern about the continued prevalence of child, early
and forced marriage worldwide, including the fact that there are
F still approximately 15 million girls married every year before they
reach 18 years of age and that more than 720 million women and
girls alive today were married before their eighteenth birthday.
Recognizing that child, early and forced marriage is a harmful
practice that violates, abuses or impairs human rights and is linked
G to and perpetuates other harmful practices and human rights
violations and that such violations have a disproportionately
negative impact on women and girls, and underscoring the human
rights obligations and commitments of States to promote and
'Resolution adopted by the United Nations General Assembly on 19th December,
2016 on "Child, early and forced marriage", Seventy-first session, Agenda Item 64(a)
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 895
[DEEPAK GUPTA, J.]

protect the human rights and fundamental freedoms of women A
and girls and to prevent and eliminate the practice of child, early
and forced marriage."
35. In the National Family Health Survey-4, 2015-2016 6 some
startling figures are revealed. It was found that at the time of carrying
out the survey in2014, amongst women in the age group of20-24 years, B
almost 26.8% women were married before they attained the age of 18
years, i.e. more than one out of.4 marriages was of a girl child. In the
urban areas the percentage is 17 .5% and it rises to 31.5% in the rural
areas.
36. In the National Plan of Action for Children, 2016 7 , the c
Government of India itselfhas recognised the high rate of child marriages
prevalent in the country and the fact that a child marriage violates the
basic rights of health, development and protection of the child. Relevant
portion of the report reads as follows:
"A large number of children, especially girls are married before 0
the legal age in India. According to NFHS 3 (2005-06), 47.4
percent of women in the age 20-24 were married before 18, the
percentage being higher for rural areas. The situation has improved
in 2013-14 as the RSOC data shows that 30.3 percent women in
the age 20-24 were married before their legal age. Early marriage
poses various risks for the survival, health and development of E
young girls and to children born to them. It is also used as a
means of trafficking."
37. In a Report' based on the Census, 2011, the consequences of
child marriages have been dealt with in the following terms:
F
"5.1 Consequences
Child marriage is not only a violation of human rights, but is also
recognized as an obstacle to the development of young people.
The practice of child marriage cut shorts a critical stage of self-

6
G
India Fact Sheet -Issued by Government of India, Ministry of Health and Family
Welfare
7
Drawn up by the Ministry of Women and Child Development, Government of India,
(Published on 14th January, 2017
8
A Statistical Analysis of Child Marriage in India, Based on Census, 2011
(Published by Young Lives and National Commission for Protection of Child Rights
(NCPCR) June 2017, New Delhi. H
896 SUPREME COURT REPORTS (2017] 13 S.C.R.

A discovery and exploring one's identity. Child marriage is an
imposition of a marriage partner on children or adolescents who
are in no way ready and matured, and thus, are at a loss to
understand the significance of marriage. Their development gets
comprised due to being deprived of freedom, opportunity for
personal development, and other rights including health and well-
B
being, education; and participation in civic life and nullifies their
basic rights as envisaged in the United Nation's Convention on
the Right of the Child ratified by India in 1989. Marriage at a
young age prevents both girls and boys from exercising agency in
making important life decisions and securing basic freedoms,
c including pursuing opportunities for education, earning a sustainable
livelihood and accessing sexual health and rights.
The prevalent practice of child marriage has detrimental
consequences for both boys and girls, but has more grave and
far-reaching adverse effects on girls. Within a patriarchal family
D structure, girls have relatively little power, but young and newly
married women are particularly powerless, secluded and
voiceless. Adolescent girls have little choice about whom and
when to marry, whether or not to have sexual relations, and when
to bear children. This is well elaborated in a study of girls in the
age group 10-16 years. It was found that they were oppressed
E in several ways such as:
• They had to submit unquestioningly to the parents' decision
regarding their marriage.
• They were over-burdened with household chores.
F • They had limited knowledge of their body and its functioning.
• They were unaware of sexual changes, contraception, child
bearing and rearing.
• They dropped out of school on attaining puberty.
G • They had no time for leisure and social interaction.
• They were discriminated in matters of food intake and
expressing their views within the family.
Imagine the fate of a young girl with the above profile if she is to
H face marital life and its challenges during adolescence. The
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 897
[DEEPAK GUPTA, J.]

adolescent married girl is more at risk. She is less likely to be A
allowed out of the house, to have access to services and usually,
not be given space or freedom to exert agency. Within the marital
home, which in majority of the cases is a joint family, she will
probably not have much communication with her husband, and
will end up socially isolated, with very little contact with her parental
B
home."
38. This Report' also notices upswing of female deaths during
pregnancy in the age groups of 15-19 years and attributes these deaths
to the death of teenage mothers. The relevant portion of the report
reads as follows:
"Census data have demonstrated an upswing of female deaths in
c
the age group of 15-19 years. This high mortality rate could be
attributed to the deaths of teenage mothers. Child marriage
virtually works like a double-edged sword; lower age at marriage
is significantly associated with worse outcomes for the child and
worse pregnancy outcomes for the mother. All these factors push D
girls and their families into perpetuation of intergenerational poverty
and marginalisation....."
39. This Report'" deals with various other aspects and some
apposite observations are as follows:
"A young girl who is still struggling to understand her own anatomy, E
when forced to make conjugal relations, often shows signs of
post-traumatic stress and depression owing to sexual abuse by
her older partner. Neither the bodies of these young brides nor
their innocent little minds are prepared, therefore, forced sexual
encounters can lead to irreversible physical and psychological
damage. A study conducted in 2013 showed that young girls are F
three times more likely to experience marital rape."
This report reveals a shocking aspect that girls below the age of
18 years are subjected to three times more marital rape as compared to
the grown up women.

'A Statistical Analysis of Child Marriage in India, Based on Census, 20 l l
G
(Published by Young Lives and National Commission for Protection of Child Rights
(NCPCR) June 2017, New Delhi.
'°A Statistical Analysis of Child Marriage in India, Based on Census, 2011
(Published by Young Lives and National Commission for Protection of Child Rights
(NCPCR) June 2017, New Delhi.
H
898 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 40. A perusal of the various reports and data placed before us
clearly shows that marriage of the child not only violates the human
rights of a child but also affects the health of the child.
41. Reference may be made to certain decisions cited before us.
The Delhi High Court in Association for Social Justice & Research v.
B Union of India & Ors.", was dealing with a case where a girl aged
between 16 tp 18 years was married off to a man stated to be over 40
years of age. The Court noted the ill effects of child marriage and gave
a direction that the child will remain with her parents and her marriage
will not be consummated till she attains the age of 18 years. Thereafter,
a Full Bench of the Delhi High Court in Court on its own motion (Lajja
C Devi) & Ors. v. State & Ors. 12 , while dealing with the provisions of
PCMA and also referring to the provisions of Sections 375 and 376 !PC
and after noticing the judgment passed in the case of Association For
Social Justice & Research (supra), again reiterated that child marriage
is a social evil, which endangers the life and health of the child. The ill
D effects of child marriage have been summarised in the following manner:
"'(i) Girls who get married at an early age are often more
susceptible to the health risks associated with early sexual
initiation and childbearing, including HIV and obstetric fistula.
(ii) Young girls who lack status, power and maturity are often
E subjected to domestic violence, sexual abuse and social
isolation.
(iii) Early marriage almost always deprives girls of their education
or meaningful work, which contributes to persistent poverty.
(iv) Child Marriage perpetuates an unrelenting cycle of gender
F
inequality, sickness and poverty.
(v) Getting the girls married at an early age when they are not
physically mature, leads to highest rates of maternal and child
mortality."
G 42. The Full Bench, with regard to Section 375 !PC before its
amendment in 2013, made the following observations:
"32. It is distressing to note that the Indian Penal Code, 1860
acquiesces child marriage. The exception to Section 375
"[2010 (118) DRJ 324 (DB)]
H "W.P.(Crl.) No. 338 of2008
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 899
[DEEPAK GUPTA, J.]

specifically lays down that sexual intercourse of man with his A
own wife, the wife not being under fifteen years of age is not
rape, thus ruling out the possibility of marital rape when the age of
wife is above fifteen years. On the other hand, if the girl is not
the wife of the man, but is below sixteen, then the sexual intercourse
even with the consent of the girl amounts to rape? It is rather
B
shocking to note the specific relaxation is given to a husband who
rapes his wife, when she happens to be between 15-16 years.
This provision in the Indian Penal Code, 1860 is a specific illustration
of legislative endorsement and sanction to child marriages."
43. A Full Bench of Madras High Court in T. Sivak11mar v.
Inspector ofPolice 13 , dealt with the provisions of the PCMA. It held
c
that a marriage contracted with a female less than 18 years and more
than 15 years is not a void marriage but is only a voidable marriage.
However, the Court went on to hold that stricto sens11 the marriage
could not be called a valid marriage since the child bride had the option
of getting the marriage annulled till she attains the age of 20 years. It D
held as follows:
"The marriage contracted by a person with a female of less than
18 years is voidable and the same shall be subsisting until it is
annulled by a competent Court under Section 3 of the Prohibition
of Child Marriage Act. The said marriage is not a "valid marriage" E
stricto sens11 as per the classification but it is "not invalid". The
male contracting party shall not enjoin all the rights which would
otherwise emanate from a valid marriage stricto sens11, instead
he will enjoin only limited rights."
Reference to these judgments has been made only for the purpose F
of highlighting the concern shown by the Courts with regard to child
marriage and the manner in which the Courts have consistently held that
the child marriage is an evil which should be avoided.
THE KARNATAKA EXPERIENCE
44. A writ petition 14 was filed in the Karnataka High Court, raising G
the issue ofvalidity ofchild marriages. In its order dated 10th November,
2010 the Karnataka High Court noted as follows:

"H.C.P. No. 907 of2011, vide its judgment dated 3rd November, 2011
"Writ Petition No.1115412006 (GM-RES-PIL), Muthamma Devaya & Anr.V. Union of
~~&~ H
900 SUPREME COURT REPORTS [2017] 13 S.C.R.

A "The narration of facts in the present writ petition is heart
rendering. The photographs appended to the writ petition have
been a cause of deep distress to us. The photographs reveal, the
marriage of minor girls, not yet in their teens, to fully grown men.
In one of the photographs, the girl has been made to stand on a
chair, so that she could garland her tall and fully grown groom.
B
Farced marriage of the girl child, one realises, is one of the
manifestations of cruelty, possibly without any equivalent
comparison. It seems that the practice is common place in this
part of the world. It may have remained unchecked for a variety
of reasons including, poverty, lack of education, culture and
c ignorance. We are of the view that allowing the evil to continue
without redressing it, would make us a party to the disgraceful
activity."
45. After making the aforesaid observations, the Karnataka High
Court constituted a four Member committee, headed by Dr. Justice
D Shivraj V. Patil, former Judge of this Court, to expose the extent of
practice of child marriage. The Committee was also requested to suggest
ways and means to root out the evil of child marriage from society and
to prevent it to the maximum extent possible. The Core Committee
submitted its, report and made various recommendations. One of its
recommendations was that marriage of a girl child below the age of 18
E years should be declared void ab initio. Pursuant to the report of the
Core Committee, in the State ofKarnataka an amendment was made in
the PCMA arid Section l(A) has been inserted after sub-section 2 Section
3, which reads as under:
"(IA) Notwithstanding anything contained in sub-section (I) every
F child marriage solemnized on or after the date of coming into
force of the Prohibition of Child Marriage (KamatakaAmendment)
Act, 2016 shall be void ab initio."
46. Therefore, any marriage of a child, i.e. a female aged below
18 years and a male below 21 years is void ab initio in the State of
G Karnataka. This is how the law should have been throughout the
country. Where the marriage is void, there cannot be a husband or a
wife and I have no doubt that protection of Exception 2 to Section 375
IPC cannot be availed of by those persons, who claim to be "husband"
of"child brides" pursuant to a marriage which is illegal and void.
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 901
[DEEPAK GUPTA, J.]

4 7. This leads to an anomalous situation. In Karnataka, if a A
husband has sexual intercourse with his "wife" aged below 18 years,
since such marriage would be void ab initio, the wife cannot be treated
to be a legal wife and, therefore, the husband cannot get the benefit of
Exception 2 to Section 375 IPC whereas in rest of the country he would
be entitled to the benefit of such exception and be immune from B
prosecution.
THE DEFENCE OF SOCIAL REALITY
48. The main defence raised on behalf of the Union of India is
that though the practice of child marriage may be reprehensible, though
it may have been made illegal, the harsh reality is that 20% to 30% of c
female children below the age of 18 years are got married in total violation
of the PCMA. According to the Union of India, keeping in view this
stark reality and also keeping in view the sanctity which is attached to a
union like marriage, the Parliament, in its wisdom, thought it fit to retain
the age of fifteen in Exception 2 to Section 375 !PC. It has also been
urged that when Parliament enacts any law which falls within its D
jurisdiction, then this Court should not normally interfere with that Act.
When any law is passed, the Court must presume that the Parliament
has gone into all aspects of the matter. Though it was faintly urged
before us by learned counsel for the petitioner that the Parliament did
not go into certain aspects, this Court is clearly of the view that such E
ignorance cannot be imputed to Parliament. In our constitutional
framework, where there is division of powers, each repository of power
must respect the other and this Court must extend to the Parliament the
respect it deserves. One cannot and should not impute ignorance to the
legislature.
F
49. The stand of the Union of India maybe summarised as follows:-
(i) "Economic and educational development in the country is still
uneven and child marriages are still taking place. It has been,
therefore, decided to retain the age of 15 years under Exception 2
of Section 375 of !PC so as to give protection to husband and
G
wife against criminalizing the sexual activity between them.
(ii) As per National Family Health Survey-III, 46% of women
between the ages 18-29 years in India were married before the
age of 18. It is also estimated that there are 23 million child
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902 SUPREME COURT REPORTS (2017] 13 S.C.R.

A brides in the country. Hence, criminalizing the consummation of
a marriage union with a serious offence such as rape would not
be appropriate and practical.
(iii) Providing punishment for child marriage with consent does
not appear to be appropriate in view of socio-economic conditions
B of the country. Thus, the age prescribed in Exception 2 of Section
375 of !PC has been retained considering the basic facts of the
still evolving social norms and issues.
(iv) The Law Commission also recommended for raising the age
from 15 years to 16 years and it was incorporated in the Criminal
C Law (Amendment) Ordinance, 2013. However, after wide ranging
consultations with various stakeholders it was farther decided to
retain the age at 15 years.
(v) Exception 2 of Section 375 of!PC envisages that ifthe marriage
is solemnized at the age of 15 years due to traditions, it should not
D be a reason to book the husband in the case of offence of rape
under the !PC.
(vi) It is also necessary that the provisions of law should be in
such a manner that it cannot affect a particular class of society.
Retaining the age of 15 years in Exception 2 of Section 375 of
E !PC has been provided considering the social realities of the
nation."
50. Certain other facts may be noted which, though not strictly
necessary for deciding the legal issues, are necessary to decide the
background in which amendment to Section 375 !PC and other criminal
laws were carried out. These facts clearly show that Parliament
F
knowingly took a decision not to criminalize sexual activity between
husband and wife. In the 84th Report of the Law Commission, it was
recommended that the age of consent under clause Sixthly of Section
375 !PC, should be increased to 18 years and Exception 2 should be
deleted. In the 172nd Report of the Law Commission, it was
G recommended that the age of consent under clause Sixthly should be
retained at 16 years, but the Law Commission specifically opined that
there should be no distinction on account of marriage of the girl child and
the age in Exception 2 be raised from 15 to 16 years. The Justice
Verma Committee did not make any recommendation to change the age
of consent under clause Sixthly. However Parliament, while amending
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 903
[DEEPAK GUPTA, J.]

the IPC in the year 2014, in the wake of the "Nirbhaya" incident, decided A
to increase the age of consent to 18 years under clause Sixthly, but did
not make any change in Exception 2 of Section 375 IPC.
51. Interestingly, though the Verma Committee did not recommend
that the age of consent should be increased under clause Sixthly from 16
to 18 years, but it did recommend that Exception 2 should be completely B
deleted. The Parliament took note of the Verma Committee report. It
also took note of the recommendations of the Law Commission and a
Standing Committee was constituted and Parliament enacted this law
pursuant to the recommendations of the Standing Committee. It would
also be pertinent to mention that one Member of Parliament, Mr. Saugata
Roy moved a Private Member's Bill to fix the age at 18 years in Exception
c
2 of Section 375 IPC, but that amendment was not carried. Interestingly,
the amendment to Section 375 IPC and other sections relating to offences
against women and the POCSO were incorporated by one Amending
Act i.e., The Criminal Law {Amendment) Act, 2013. After the
"Nirbhaya" case, the Juvenile Justice (Care and Protection of Children) D
Act, 2015 was also amended in 2016 and a child in conflict with law
over the age of 16 years, if charged with a heinous offence, can be tried
in a court of law if the Juvenile Justice Board feels that he was mature
enough to commit a crime.
POWER OF THE COURT TO INTERFERE E
52. It is a well settled principle oflaw that when the constitutional
validity of the law enacted by the legislature is under challenge and
there is no challenge to the legislative competence, the Court will always
raise a presumption of the constitutionality of the legislation. The courts
are reluctant to strike down laws as unconstitutional unless it is shown F
that the law clearly violates the constitutional provisions or the fundamental
rights of the citizens. The Courts must show due deference to the
legislative process.
53. There can be no dispute with the proposition that Courts must
draw a presumption of constitutionality in favour oflaws enacted by the
G
legislature. In Sub-Divisional Magistrate v. Ram Ka/i 15 , this Court
observed as follows:
" ..... The presumption is always in favour of the constitutionality
of an enactment, since it must be assumed that the legislature
"(1968) I SCR 205 H
904 SUPREME COURT REPORTS [2017] 13 S.C.R.

A understands and correctly appreciates the needs of its own people,
and its laws are directed to problems made manifest by experience
and its discriminations are based on adequate grounds."
54. Thereafter, inPathumma & Ors. v. State ofKera/a & Ors.",
this Court held that the Court would interfere only when the statute
B clearly violates the rights of the citizens provided under Part III of the
Constitution or where the Act is beyond the legislative competence or
such similar grounds. The relevant observations are as follows:
"6. It is obvious that the Legislature is in the best position to
understand and appreciate the needs of the people as enjoined by
c the Constitution to bring about social reforms for the upliftment of
the backward and the weaker sections of the society and for the
improvement of the lot of poor people. The Court will, therefore,
interfere in this process only when the statute is clearly violative
of the right conferred on the citizen under Part III of the
Constitution or when the Act is beyond the legislative competence
D of the legislature or such other grounds. It is for this reason that
the Courts have recognised that there is always a presumption in
favour of the constitutionality of a statute and the onus to prove
its invalidity lies on the party which assails the same ... "
55. In Government of A.P. v. P. Laxmi Devi", this Court held
E thus:
"66. As observed by the Privy Council in Shell Co. of Australia v.
Federal Commr. of Taxation [1931AC275: 1930All ER Rep 671
(PC)] (All ER p. 680 G-H)
" ... unless it becomes clear beyond reasonable doubt that the
F
legislation in question transgresses the limits laid down by the
organic law of the Constitution, it must be allowed to stand as
the true expression of the national will ... "
67. Hence if two views are possible, one making the provision in
the statute constitutional, and the other making it unconstitutional,
G the former should be preferred vide Kedar Nath Singh v. State of
Bihar [AIR 1962 SC 955]. Also, ifit is necessary to uphold the
constitutionality of a statute to construe its general words narrowly

"(1978) 2 sec 1
"(2008) 4 sec no
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 905
[DEEPAK GUPTA, J.]

or widely, the court should do so vide GP. Singh 's Principles of A
Statutory Interpretation, 9th Edn., 2004, p. 497 ...... "
56. In Subramanian Swamy v. Director, CBI", a Constitution
Bench of this Court laid down the following principle:
"Court's approach
49. Where there is challenge to the constitutional validity of a law B
enacted by the legislature, the Court must keep in view that there
is always a presumption of constitutionality of an enactment, and
a clear transgression of constitutional principles must be shown.
The fundamental nature and importance of the legislative process
needs to be recognised by the Court and due regard and deference c
must be accorded to the legislative process. Where the legislation
is sought to be challenged as being unconstitutional and violative
of Article 14 of the Constitution, the Court must remind itself to
the principles relating to the applicability of Article 14 in relation
to invalidation oflegislation. The two dimensions of Article 14 in
its application to legislation and rendering legislation invalid are D
now well recognised and these are: (i) discrimination, based on an
impermissible or invalid classification, and (ii) excessive delegation
of powers; conferment of uncanalised and unguided powers on
the executive, whether in the form of delegated legislation or by
way of conferment of authority to pass administrative orders - if E
such conferment is without any guidance, control or checks, it is
violative ofArticle 14 of the Constitution. The Court also needs
to be mindful that a legislation does not become unconstitutional
merely because there is another view or because another method
may be considered to be as good or even more effective, like any
issue of social, or even economic policy. It is well settled that the F
courts do not substitute their views on what the policy is."
57. I am conscious of the self imposed limitations laid down by
this Court while deciding the issue whether a law is constitutional or not.
However, if the law is discriminatory, arbitrary or violative of the
fundamental rights or is beyond the legislative competence of the G
legislature then the Court is duty bound to invalidate such a law.
. 58. Justice H.R. Khanna in the case of State of Punjab v. Khan
Chant/1 9 held that when Courts strike down laws they are only doing
"(2014) s sec 682
"(1974) 1 sec 549 H
906 SUPREME COURT REPORTS [2017] 13 S.C.R.

A their duty and no element of judicial arrogance should be attributed to
the Courts when they do their duty under the Constitution and determine
whether the law made by the legislature is in conformity with the
provisions of the Constitution or not. The relevant observations are as
follows:
B "12. It would be wrong to assume that there is an element of
judicial arrogance in the act of the Courts in striking down an
enactment. The Constitution has assigned to the Courts the function
of determining as to whether the laws made by the Legislature
are in conformity with the provisions of the Constitution. Jn
adjudicating the constitutional validity of statutes, the Courts
c discharge an obligation which has been imposed upon them by
the Constitution. The Courts would be shirking their responsibility
if they hesitate to declare the provisions of a statute to be
unconstitutional, even though those provisions are found to be
violative of the Articles of the Constitution. Articles 32 and 226
D are an integral part of the Constitution and provide remedies for
enforcement of fundamental rights and other rights conferred by
the Constitution. Hesitation or refusal on the part of the Courts to
declare the provisions of an enactment to be unconstitutional, even
though they are found to infringe the Constitution because of any
notion ofjudicial humility would in a large number of cases have
E the effect of taking away or in any case eroding the remedy
provided to the aggrieved parties by the Constitution. Abnegation
in matters affecting one's own interest may sometimes be
commendable but abnegation in a matter where power is conferred
to protect the interest of others against measures which are
F violative of the Constitution is fraught with serious consequences.
It is as much the duty of the Courts to declare a provision of an
enactment to be unconstitutional if it contravenes any Article of
the Constitution as it is theirs to uphold its validity in case it is
found to suffer from no such infirmity."

G 59. Therefore, the principle is that normally the Courts should
raise a presumption in favour of the impugned law; however, ifthe law
under challenge violates the fundamental rights of the citizens, the law is
arbitrary, or is discriminatory, the Courts can either hold the law to be
totally unconstitutional and strike down the Jaw or the Court may read
down the law in such a manner that the law when read down does not
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 907
[DEEPAK GUPTA, J.J

violate the Constitution. While the Courts must show restraint while A
dealing with such issues, the Court cannot shut its eyes to the violations
of the fundamental rights of the citizens. Therefore, if the legislature
enacts a law which is violative of the fundamental rights of the citizens,
is arbitrary and discriminatory, then the Court would be failing in its duty
if it does not either strike down the law or read down the law in such a
B
manner that it falls within the four corners of the Constitution.
60. It is not the job of the Court to decide whether a law is good or
bad. Policy matters fall within the realm of legislature and not of the
Courts. The Court, however, is empowered and has the jurisdiction to
decide whether a law is unconstitutional or not.
c
61. "The law is an ass" said Mr. Bumble'°. That may be so. The
law, however, cannot be arbitrary or discriminatory. Merely because a
law is asinine, it cannot be set aside. However, if the law is arbitrary,
discriminatory and violates the fundamental rights guaranteed to the
citizens of the country, then the law can either be struck down or can be
read down to make it in consonance with the Constitution of India. D

WHETHER EXCEPTION 2 TO SECTION 375 IPC IS
ARBITRARY?
62. Before dealing with this issue, it would be necessary to point
out that earlier there was divergence of opinion as to whether a law E
could be struck down only on the ground that it was arbitrary. In Indira
Nehru Gandhi v. Raj Narain" the Court struck down clauses 4 and 5
of Article 329A of the Constitution on the ground of arbitrariness.
Reliance was placed on the celebrated judgment of this Court passed in
the case of Keshavananda Bharati v. State of Kerala 22 • In Para 681
of Raj Narain (supra), Chandrachud J., held as follows: F
"681. It follows that clauses (4) and (5) of Article 329A are
arbitrary and are calculated to damage or destroy the rule of law.
Imperfections oflanguage hinder a precise definition of the rule
of law as of the definition of' law' itself. And the Constitutional
Law of 1975 has undergone many changes sinceA.V. Dicey, the G
great expounderofthe rule oflaw, delivered his lectures as Vinerian
Professor of English Law at Oxford, which were published in
20
Oliver Twist: Author Charles Dickens
" 1975 (Supp.) sec I
22 (1973) 4 sec 225.
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908 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 1885 under the title, "Introduction to the Study of the Law of
the Constitution". But so much, I suppose, can be said with
reasonable certainty that the rule of law means that the exercise
of powers of government shall be conditioned by law and that
subject to the exceptions to the doctrine of equality, no one shall
be exposed to the arbitrary will of the Government. Dicey gave
B
three meanings to rule oflaw: Absence of arbitrary power, equality
before the law or the equal subjection of all classes to the ordinary
law of the land administered by ordinary law courts and that the
Constitution is not the source but the consequence of the rights uf
individuals, as defined and enforced by the courts .......... "
c 63. The aforesaid case was one of the first cases in which a law
was set aside on the ground of being arbitrary. In E.P. Royappa v.
State of Tamil Nad11 23 the doctrine of arbitrariness was further
expanded. Bhagwati, J ., eruditely explained the principle in the following
terms.
D "85 ............. From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according to
E political logic and constitutional law and is therefore violative of
Article 14, and if it affects any matter relating to public employment,
it is also violative of Article 16. Articles 14 and 16 strike at
arbitrariness in State action and ensure fairness and equality of
treatment. They require that State action must be based on valid
relevant principles applicable alike to all similarly situate and it
F must not be guided by any extraneous or irrelevant considerations
because that would be denial of equality. Where the operative
reason for State action, as distinguished from motive inducing from
the antechamber of the mind, is not legitimate and relevant but is
extraneous and outside the area of permissible considerations, it
G would amount to mala fide exercise of power and that is hit by
Articles 14 and 16. Mala fide exercise of power and arbitrariness
are different lethal radiations emanating from the same vice: in
fact the latter comprehends the former. Both are inhibited by
Articles 14and 16."
"(1974) 4 sec 3
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 909
[DEEPAK GUPTA, J.]

64. The doctrine developed in Royappa's case (supra) was further A
advanced in the case of Maneka Gandhi v. Union of India". In this
case, the test of reasonableness was introduced and it was held that a
law which is not "right, just and fair" is arbitrary. The following
observations are apposite:-
"7 ........... The principle of reasonableness, which legally as well
B
as philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the
test of reasonableness in order to be in conformity with Article
14. It must be "right and just and fair" and not arbitrary, fanciful
or oppressive; otherwise, it would be no procedure at all and the c
requirement ofArticle 21 would not be satisfied."
65. This principle was followed in the cases of A.L. Katra v.
Project and Equipment Corpn. 25 , Babita Prasad v. State of Bihar26 ,
Ajay Hasia v. Khalid Mujib SehravardP' and Dr. K.R. Lakshmanan
v. State of Tamil Nadu". In the case of Ajay Hasia (supra}, a D
Constitution Bench of this Court held as follows:
"16 ...... Wherever therefore there is arbitrariness in State action
whether it be of the legislature or of the executive or of an
'authority' under Article 12, Article 14 immediately springs into
action and strikes down such State action. In fact, the concept of
E
reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through
the whole of the fabric of the Constitution."
66. In State of A.P. v. McDowell & Co.", a three-Judge Bench
of this Court struck a discordant note and rejected the plea of the
Amending Act being arbitrary. The Court held that an enactment could F
be struck down if it is being challenged as violative of Article 14 only if
it is found that it is violative of equality clause, equal protection clause or
violative of fundamental rights. The Court went on to hold that an
enactment cannot be stuck down only on the ground that the Court thinks
G
"(1978) 1 sec 248
"(1984) 3 sec 316,
" 1993 Supp (3) sec 268
"(1981) 1sec122
" ( 1996) 2 sec 226
" (1996) 3 sec 109 H
910 SUPR~ME COURT REPORTS (2017] 13 S.C.R.

A that it is unjustified. This judgment need not detain us for long because
in Shayara Bano v. Union of India & Ors. 30 popularly known as the
"Triple Talaq case", this Court held that this judgment did not take note
ofbindingjudgrments of this Court passed by a Constitution Bench, in the
case of Ajay Hasia (supra) and a three-Judge Bench in the case of
Dr.K.R. Lakshmanan (supra). After discussing the entire law on the
B
subject, Nariman, J ., in his judgment held as follows:
"It is, therefore, clear from a reading of even the aforesaid two
Constitution Bench judgments thatArticle 14 has been referred
to in the context of the constitutional invalidity of statutory law to
show that such statutory law will be struck down if it is found to
C be "arbitrary".
xxx xxx xxx
xxx xxx xxx
"55 ......... The test of manifest arbitrariness, therefore, as laid down
in the aforesaid judgments would apply to invalidate legislation as
D well as subordinate legislation under Article 14. Manifest
arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining
principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary.
E We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to
negate legislation as well under Article 14."
Therefore, there can be no dispute that a law can be struck down
if the Court find it is arbitrary and falls foul of Article 14 and other
fundamental rights.
F
67. In this case, we are concerned mainly with Article 14 and 21
of the Constitution of India. The legislative history given above clearly
indicates that a child has universally been defined as a person below 18
years of age in all the enactments. This has been done for the reason
that it is perceived that a person below the age of 18 years is not fully
G developed and does not know the consequences of his/her actions. Not
only is a person below the age of 18 years treated to be a child, but is
also not even entitled to deal with his property, enter into a contract or
even vote.
30 WP(C) No.118/2006 and connected matters [(2017) Vol. 8 SCALe 178]
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 911
[DEEPAK GUPTA, J.]

68. The fact that child marriage is an abhorrent practice and is A
violative of human rights of the child is not seriously disputed by the
Union oflndia. The only justification given is that since a large number
of child marriages are taking place, it would not be proper to criminalize
the consummation of such child marriages. It is urged that, keeping in
view age old traditions and evolving social norms, the practice of child B
marriage cannot be wished away and, therefore, legislature in its wisdom
has thought it fit not to criminalize the consummation of such child
marriages.
69. I am not impressed with the arguments raised by the Union of
India. Merely because something is going on for a long time is no
ground to legitimise and legalise an activity which is per se illegal and a c
criminal offence. No doubt, it is totally within the realm of Parliament to
decide what should be the age of consent under clause Sixthly of Section
375 IPC. It is also within the domain of the Parliament to decide what
should be the minimum age of marriage. The Parliament has decided in
both the enactments that a girl below 18 years is not capable of giving D
consent to have sex and legally she cannot marry. Parliament has also,
in no uncertain terms, prohibited child marriage and come to the
conclusion that child marriage is an activity which must come to an end.
If that be so, can the practice of child marriage which is admittedly "an
evil", and is also a criminal offence be set up as an exception in a case
of a girl child, who is subjected to sexual intercourse by her so called E
husband. Shockingly, even if this sexual intercourse is forcible and
without the consent of the girl child, then also the husband is not liable
for any offence. This law is definitely not right, just and fair and is,
therefore, arbitrary.
70. There can be no dispute that every citizen of this country has F
the right to get good healthcare. Every citizen can expect that the State
shall make best endeavours for ensuring that the health of the citizen is
not adversely affected. By now it is well settled by a catena ofjudgments
of this Court that the "right to life" envisaged in Article 21 of the
Constitution of India is not merely a right to live an animal existence. G
This Court has repeatedly held that right to life means a right to live with
human dignity. Life should be meaningful and worth living. Life has
many shades. Good health is the raison d'etre ofa good life. Without
good health there cannot be a good life. In the case of a minor girl child
good health would mean her right to develop as a healthy woman. This
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912 SUPREME COURT REPORTS [2017] 13 S.C.R.

A not only requires good physical health but also good mental health. The
girl child must be encouraged to bloom into a healthy woman. The girl
child must not be deprived of her right of choice. The girl child must not
be deprived of her right to S\lldy further. When the girl child is deprived
of her right to study further, she is actually deprived ofher right to develop
into a mature woman, who can earn independently and live as a self
B
sufficient independent woman. In the modern age, when we talk of
gender equality, the girl child must be given equal opportunity to develop
like a male child. In fact, in my view, because of the patriarchal nature
of our society, some extra benefit must be showered upon the girl child
to ensure that she is not deprived of her right to life, which would include
c her right to grow and develop physically, mentally and economically as
an independent self sufficient female adult.
71. It is true that at times the State, because of paucity of funds,
or other reasons beyond its control, cannot live up to the expectations of
the people. At the same time, it is not expected that the State should
D frame a law, which adversely affects the health of a citizen, that too a
minor girl child. The State, under Article 15 of the Constitution, is in
fact, empowered to make laws favouring women. Reservation for women
is envisaged under Article 15 of the Constitution. In Vishakha v. State
of Rajasthan31 , this Court held that sexual harassment of working
women amounts to violation of the rights guaranteed by Articles 14, 15
E and 23 of the Constitution.
72. When a girl is compelled to marry before she attains the age
of 18 years, her health is put in serious jeopardy. As is evident from
various reports referred to above, girls who were married before the
age of 19 years are likely to suffer medical and psychological problems.
F A 15 or 16 year old girl, when forcibly subjected to sexual intercourse by
her "husband", undergoes a trauma, which her body and mind is not
ready to face. The girl child is also twice as more likely to die in child
birth than a grown up woman. The least, that one would expect in such
a situation, is that the State would not take the defence of tradition and
G sanctity of marriage in respect of girl child, which would be totally violative
of Article 14, 15 and 21 of the Constitution. Therefore, this Court is of
the view that Exception 2 to Section 375 !PC is arbitrary since it is
violative of the principles enshrined in Article 14, 15 and 21 of the
Constitution of India.
"(1997) 6 sec 241
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 913
[DEEPAK GUPTA, J.]

73. Approaching this aspect from another angle. As is evident A
from various reports filed in this case, child marriages are not restricted
to girls aged above 15 years. Even as per the National Plan of Action
for Children, 2016 prepared by the Ministry of Women and Child
Development, Government of India, 30.3% marriages i.e. almost I in
every 3 marriage takes place in violation of the PCMA. Many of these
B
relate to child brides aged less than 15 years. A girl may be married
when she is 3-4 years or may be 10-11 years old. She may be sent to
her matrimonial home on attaining the age of puberty, which may be
well before she attains the age of 15 years. In such an eventuality, what
is the reason for fixing the magic figure of 15 years. This figure had
relevance when under the criminal law and the marriage laws the age c
was similar. In the year 1940, the age of consent was 16 years, the age
of marriage was 15 years and the age under the exception was also 15
years; in 1975, the age of consent was 16 years, the age of marriage
was 18 years, but the age under the exception remained 15 years. That
may have been there because there was no change in the age of consent
D
under Clause Sixthly. Now when the age of consent is changed to 18
years, the minimum age of marriage is also 18 years and, therefore,
fixing a lower age under Exception 2 is totally irrational. It strikes against
the concept of equality. It violates the right of fair treatment of the girl
child, who is unable to look after herself. The magic figure of 15 years
is not based on any scientific evaluation, but is based on the mere fact E
that it has been existing for a long time. The age of 15 years in Exception
2 was fixed in the year 1940 when the minimum age for marriage was
also 15 and the age of consent under clause Sixthly was 16. In the
present context when the age for marriage has been fixed at 18 years
and when the age of consent is also fixed at 18 years, keeping the age
F
under Exception 2 at 15 years, cannot be said to be right, just and fair.
In fact, it is arbitrary and oppressive to the girl child.
74. Law cannot be hidebound and static. It has to evolve and
change with the needs of the society. Recognising these factors, the
Parliament increased the minimum age for marriage. The Parliament
also increased the minimum age of consent but the inaction in raising the G
age in Exception 2 is by itself an arbitrary non-exercise of power. When
the age was being raised in all other laws, the age under Exception 2
should also have been raised to bring it in line with the evolving laws
especially the laws to protect women and the girl child aged below 18
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914 SUPREME COURT REPORTS [2017] 13 S.C.R.

A years. Therefore, I have no hesitation in holding that the Exception 2, in
so far as it relates to the girl child below eighteen years, is unreasonable,
unjust, unfair and violative of the rights of the girl child. To that extent
the same is arbitrary and liable to be set aside.
WHETHER EXCEPTION 2 TO SECTION 375 IPC IS
B DISCRIMINATORY?
75. There can be no dispute that a law can be set aside if it is
discriminatory. Some elements of discrimination have already been dealt
with while dealing with the issue of arbitrariness. However, there are
certain other ~spects which make Exception 2 to Section 375 !PC in so
c far as it deals with the girl child totally discriminatory. The law
discriminates between a girl child aged less than 18 years, who may be
educated and has sexual intercourse with her consent and a girl child
who may be married even before the age of 15 years, but her marriage
has been consummated after 15 years even against her consent. This
is invidious discrimination which is writ large. The discrimination is
D between a consenting girl child, who is almost an adult and non-{;onsenting
child bride. To give an example, if a girl aged 15 years is married off by
her parents without her consent and the marriage is consummated against
her consent, then also this girl child cannot file a criminal case against
her husband. The State is talking of the reality of the child marriages.
E What about the reality of the rights of the girl child? Can this helpless,
underprivileged girl be deprived of her rights to say 'yes' or 'no' to
marriage? Can she be deprived of her right to say 'yes' or 'no' to
having sex with her husband, even if she has consented for the marriage?
In my view, there is only one answer to this and the answer must be a
resounding "NO". While interpreting such a law the interpretation which
F must be preferred is the one which protects the human rights of the
child, which protects the fundamental rights of the child, the one which
ensures the good health of the child and not the one which tries to say
that though the practice is "evil" but since it is going on for a long time,
such "criminal" acts should be decriminalised.
G 76. The State is entitled and empowered to fix the age of consent.
The State can make reasonable classification but while making any
classification it must show that the classification has been made with the
object of achieving a certain end. The classification must have a
reasonable nexus with the object sought to be achieved. In this case the
H justification given by the State is only that it does not want to punish
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 915
[DEEPAK GUPTA, J.]

those who consummate their marriage. The stand of the State is that A
keeping in view the sanctity attached to the institution of marriage, it has
decided to make a provision in the nature of Exception 2 to Section 375
!PC. This begs the question as to why in this exception the age has
been fixed as 15 years and not 18 years. As pointed out earlier, a girl
can legally consent to have sex only after she attains the age of 18 B
years. She can legally enter into marriage only after attaining the age of
18 years. When a girl gets married below the age of 18 years, the
persons who contract such a marriage or abet in contracting such child
marriage, commit a criminal offence and are liable for punishment under
the PCMA. In view of this position there is no rationale for fixing the
age at 15 years. This age has no nexus with the object sought to be c
achieved viz., maintaining the sanctity of marriage because by law such
a marriage is not legal. It may be true that this marriage is voidable and
not void ab initio (except in the State ofKamataka) but the fact remains
that ifthe girl has got married before the age of 18 years;\she has right
to get her marriage annulled. Irrespective of the fact that the right of D
the girl child to get her marriage annulled, it is indisputable that a criminal
offence has been committed and other than the girl child, all other persons
including her husband, and those persons who were involved in getting
her married are guilty of having committed a criminal act. In my opinion,
when the State on the one hand, has, by legislation, laid down that abetting
child marriage is a criminal offence, it cannot, on the other hand defend E
this classification of girls below 18 years on the ground of sanctity of
marriage because such classification has no nexus with the object sought
to be achieved. Therefore, also Exception 2 in so far as it relates to
girls below 18 years is discriminatory and violative of Article 14 of the
Constitution.
F
77. One more ground for holding that Exception 2 to Section 375
IPC is discriminatory is that this is the only provision in various penal
laws which gives immunity to the husband. The husband is not immune
from prosecution as far as other offences are concerned. Therefore, if
the husband beats a girl child and has forcible sexual intercourse with
her, he may be charged for offences under Sections 323, 324, 325 !PC G
etc. but he cannot be charged with rape. This leads to an anomalous
and astounding situation where the husband can be charged with lesser
offences, but not with the more serious offence of rape. As far as
sexual crimes against women are concerned, these are covered by
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916 SUPREME COURT REPORTS [2017] 13 S.C.R.

A Sections 354, 354A, 354B, 354C, 3540 of the !PC. These relate to
assault or use of criminal force against a woman with intent to outrage
her modesty; sexual harassment and punishment for sexual harassment;
assault or use of criminal force to woman with intent to disrobe;
voyeurism; and stalking respectively. There is no exception clause giving
immunity to the husband for such offences. The Domestic Violence
B
Act will also apply in such cases and the husband does not get immunity.
There are many other offences where the husband is either specifically
liable or may be one of the accused. The husband is not given the
immunity in any other penal provision except in Exception 2 to Section
375 !PC. It does not stand to reason that only for the offence of rape
c the husband should be granted such an immunity especially where the
"victim wife" is aged below 18 years i.e. below the legal age of marriage
and is also not legally capable of giving consent to have sexual
intercourse. Exception 2 to Section 375 !PC is, therefore, discriminatory
and violative of Article 14 of the Constitution of India, on this count also.
D 78. The discrimination is absolutely patent and, therefore, in my
view, Exception 2, in so far as it relates to the girl child between 15 to 18
years is not only arbitrary but also discriminatory, against the girl child.
LAW IN CONFLICT WITH POCSO
79. Another aspect of the matter is that the POSCO was enacted
E by Parliament in the year 2012 and it came into force on 14th November,
2012. Certain amendments were made by Criminal Law Amendment
Act of 2013, whereby Section 42 and Section 42A, which have been
enumerated above, were added. It would be pertinent to note that
these amendments in POCSO were brought by the same Amendment
F Act by which Section 375, Section 376 and other sections of!PC relating
to crimes against women were amended. The definition of rape was
enlarged and the punishment under Section 375 !PC was made much
more severe. Section 42 of POCSO, as mentioned above, makes it
clear that where an offence is punishable, both under POCSO and also
u:nder !PC, then the offender, if found guilty of such offence, is liable to
G be punished under that Act, which provides for more severe punishment.
This is against the traditional concept of criminal jurisprudence that if
two punishments are provided, then the benefit of the lower punishment
should be given to the offender. The legislature knowingly introduced
Section 42 of POCSO to protect the interests of the child. As the
objects and reasons of the POCSO show, this Act was enacted as a
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 917
[DEEPAK GUPTA, J.]

special provision for protection of children, with a view to ensure that A
children of tender age are not abused during their childhood and youth.
These children were to be protected from exploitation and given facilities
to develop in a healthy manner. When a girl is married at the age of 15
years, it is not only her human right of choice, which is violated. She is
also deprived of having an education; she is deprived ofleading a youthful
B
life. Early marriage and consummation of child marriage affects the
health of the girl child. All these ill effects of early marriage have been
recognised by the Government of India in its own documents, referred
to hereinabove.
80. Section 42A of POCSO has two parts. The first part of the C
Section provides that the Act is in addition to and not in derogation of
any other law. Therefore, the provisions of POCSO are in addition to
and not above any other law. However, the second part of Section 42A
provides that in case of any inconsistency between the provisions of
POCSO and any other law, then it is the provisions of POCSO, which
will have an overriding effect to the extent of inconsistency. POCSO D
defines a child to be a person below the age of 18 years. Penetrative
sexual assault and aggravated penetrative sexual assault have been
defined in Section 3 and Section 5 of POCSO. Provisions of Section 3
and 5 are by and large similar to Section 375 and Section 376 of !PC.
Section 3 of the POCSO is identical to the opening portion of Section
375 of!PC whereas Section 5 of POCSO is similar to Section 376(2) of E
the !PC. Exception 2 to Section 375 of !PC, which makes sexual
intercourse or acts of consensual sex of a man with his own "wife" not
being under 15 years of age, not an offence, is not found in any provision
of POCSO. Therefore, this is a major inconsistency between POCSO
and !PC. As provided in Section 42A, in case of such an inconsistency, F
POCSO will prevail. Moreover, POCSO is a special Act, dealing with
the children whereas !PC is the general criminal law. Therefore, POCSO
will prevail over !PC and Exception 2 in so far as it relates to children, is
inconsistent with POCSO.
IS THE COURT CREATING A NEW OFFENCE? G
81. One of the doubts raised was if this Court strikes down, partially
or fully, Exception 2 to Section 375 !PC, is the Court creating a new
offence. There can be no cavil of doubt that the Courts cannot create
an offence. However, there can be no manner of doubt that by partly
striking down Section 375 !PC, no new offence is being created. The
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918 SUPREME COURT REPORTS (2017] 13 S.C.R.

A offence already exists in the main part of Section 375 !PC as well as in
Section 3 and 5 of POCSO. What has been done is only to read down
Exception 2 to Section 375 !PC to bring it in consonance with the
Constitution and POCSO.
82. In this behalf, reference may be made to some English
B decisions. In England, there was never any such statutory exception
granting immunity to the husband from the offence of marital rape.
However, Sir Mathew Hale, who was Chief Justice of England for five
years prior to his death in 1676, was credited with having laid down the
following principle:

c "But the husband cannot be guilty of a rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her
husband which she cannot retract."
83. The aforesaid principle, commonly known as Hale's principle,
D was recorded in the History of the Pleas of the Crown" and was followed
in England for many years. Under Hale's principle a husband could not
be held guilty of raping his wife. This principle was based on the
proposition that the wife gives up her body to her husband at the time of
marriage. Women, at that time, were considered to be chattel. It was
also presumed that on marriage, a woman had given her irrevocable
E consent to have sexual intercourse with her husband.
84. The aforesaid principle was followed in England for more than
two centuries. For the first time in Reg v. Clarence", some doubts
were raised by Justice Wills with regard to this proposition. In Rex v.
Clarke 34 , Hale's principle was given the burial it deserved and it was
F held that the husband's immunity as expounded by Hale, no longer exists.
Dealing with the creation of new offence, the House of Lords held as
follows:
"The remaining and no less difficult question is whether, despite
that view, this is an area where the court should step aside to
G leave the matter to the Parliamentary process. This is not the
creation of a new offence, it is the removal of a common law

" ( 1736). Vol. I, Ch. 58, P.629
" (1888) 22 Q.B.D. 23
" (1949) 2 All E.R. 448
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 919
[DEEPAK GUPTA, J.]

fiction which has become anachronistic and offensive and we A
consider that it is our duty having reached that conclusion to act
upon it."
85. In my view, as far as this case is concerned, this Court is not
creating any new offence but only removing what was unconstitutional
and offensive. B
THE PRIVACY DEBATE
86. Ms. Jayna Kothari, learned counsel for the Intervener, had
raised the issue of privacy and made reference to the judgment of this
Court in the case of Justice K.S. P11ttaswamy (Reid.) & Anr. v. Union
ofIndia and Ors. 35 to urge that the right of privacy of the girl child is c
also violated by Exception 2 to Section 375 !PC. I have purposely not
gone into this aspect of the matter because anything said or urged in this
behalf would affect any case being argued on "marital rape" even in
relation to "women over 18 years of age". In this case, the issue raised
is only with regard to the girl child and, therefore, I do not think it proper D
to deal with this issue which may have wider ramifications especially
when the case of girl child can be decided without dealing with the issue
of privacy.
RELIEF
87. Since this Court has not dealt with the wider issue of"marital E
rape", Exception 2 to Section 375 IPC should be read down to bring it
within the four comers oflaw and make it consistent with the Constitution
of India.
88. In view of the above discussion, I am clearly of the opinion
that Exception 2 to Section 375 !PC in so far as it relates to a girl child F
below 18 years is liable to be struck down on the following grounds:-
(i) it is arbitrary, capricious, whimsical and violative of the rights
of the girl child and not fair, just and reasonable and, therefore,
violative ofArticle 14, 15 and 21 of the Constitution oflndia;
(ii) it is discriminatory and violative ofArticle 14 of the Constitution G
of India and;
(iii) it is inconsistent with the provisions of POCSO, which must
prevail.
"(2017) 10 SCALE I
H
920 SUPREME COURT REPORTS [2017) l3 S.C.R.

A Therefore, Exception 2 to Section 375 !PC is read down as follows:
"Sexual intercourse or sexual acts by a man with his own
wife, the wife not being 18 years, is not rape".
It is, however, made clear that this judgment will have prospective
effect.
B
89. It is also clarified that Section 198(6) of the Code will apply
to cases of rape of "wives" below 18 years, and cognizance can be
taken only in accordance with the provisions of Section 198(6) of the
Code.

c 90. At the cost ofrepetition, it is reiterated that nothing said in this
judgement shall be taken to be an observation one way or the other with
regard to the issue of "marital rape".
91. Extremely valuable assistance was rendered to this Court by
Mr. Gaurav Agarwal, learned counsel appearing for the petitioner and
Ms. Jayna Kothari, learned counsel appearing for the intervener and 1
D
place on record my appreciation and gratitude for the same.

Ankit Gyan Derections issued.